(1983)1983 June 10 [STYLIANIDES, J.] IN T H E MATTER OF ARTICLE 146OF THE CONSTITUTION. NICOLAOS ARSALIDES, Applicant, v. THE CYPRUS TELECOMMUNICATIONS AUTHORITY, Respondents. (Case No. 61/82). lOANNIS HJ1IOS1F, Applicant, v. THE CYPRUS TELECOMMUNICATIONS AUTHORITY, Respondents. (Case No. 80/82). Subsidiary legislation—Made under an enabling Law—Must be published in the Official Gazette otherwise it isinvalid—Section 7 of the Interpretation Law, Cap. 1—General Staff Regulation of the Cyprus Telecommunications Authority—Made in virtue . of the provisions of section43of the TelecommunicationsService 5 Law, Cap. 302 and section 3 of the Public Corporations(Regulation of Personnel Matters) Law, 1970 (Law 61/70)—Not approved by the Councilof Ministers andnotpublishedintheOfficial Gazette—They are invalid—Sub judice decisions for the filling of certain posts by the respondentAuthority, which were 10 taken thereunder, faulty—Annulled—SubJudicedecisionscannot be rendered valid ex post facto by Regulations made after the filing of the recourses. '• Administrative acts or decisions—Cannot be rendered valid ex post facto by legislation enacted after the filing of a recoursechal- 15 510 3 C.L.R. Analides and Another v. CYTA lenging their validity as sucha course would lead to an uncon stitutionality—Because it would amount to an interference with the constitutionally safeguarded right of recourse under Article 146 of theConstitution. 5 These recourses were directed against the decisions of the res pondent Authority to fill in four "first entry andpromotion" posts by the promotion of the interested parties in preference to the ap plicants. The sub judice decisions were taken under the General Staff Regulation of the Cyprus Telecommunications Authority. 10 Though the Authority was vested with power to make Regulations "for the better carrying of theLaw intoeffect'* in virtue of thepro visions of section 43 of the TelecommunicationsService Law, Cap. 302 and section 3 of the Public Corporations (Regulation of Per sonnel Matters) Law, 1970 (Law 61/70) the above Regulations, 15 which were made on the 27.7.1977 were not approved by the Coun cil of Ministers and were not published in the Official Gazette. Following the filing of these recourses and the raising of the issue as to the validity of the Regulations, they were approved by the Council of Ministers and published in the Official Gazette; they 20 were, also, given retrospective effect as from 21.11.1977. ι 25 30 35 Counsel for the applicants mainly contended that the subjudice decisions were invalid as they were taken on the basis of a non existent Regulation in the sense that the said Regulation was ultra vires the power vested in the Authority by s. 43 of the Law, Cap. 302 and it was not approved by the Council of Ministers and not published in the Official Gazette of the Republic. Held,
(1)that publication in theOfficial Gazetteof the above Regulations made under an enabling Law, is a sine qua non for its validity (see section 7 of the InterpretationLaw, Cap.1); that, further, the enabling Laws provide that such Regulations requiretheapproval of the Councilof Ministers;that,therefore, the Regulations in virtue of which the sub judice decisions were taken are invalid; accordingly the decisions are faulty.
(2)That legislation enacted after the filing of a recourse, challenging an invalid or unconstitutional administrative act, cannot render it valid ex post facto as otherwise it would lead to an unconstitutionality because it would amount, in effect, to interfering with the constitutionally safeguarded right of Sll Arsalides and Another v. CYTA (1983 recourse under Article 146 of the Constitution; accordingly the sub judice decisions must be annulled. Subjudicedecisions annulled. Cases referred to: Bagdassarian v. Electricity Authority of Cyprus
(1968)3 C.L.R. 736: 5 iosif v.Cyprus Telecommunications Authority
(1970)3C.L.R. 225; Poutros v. Cypnts Telecommunications Authority
(1970)3 C.L.R. 281; 10 Constantinou v. C.Y.T.A.
(1980)3 C.L.R. 243; Institute of Patent Agents [1894] 63 LJ. P.C. 74; Georghiadesv. Republic
(1966)3 C.L.R. 252; Theofylactou v. Republic
(1966)3 C.L.R. 801; Ckristodoulides v. Republic
(1967)3 C.L.R. 356 at p. 361; 15 Alkidas v. Republic
(1967)3 C.L.R. 191; Charalombous and Another v. Cyprus Telecommunications Authority
(1974)3 C.L.R. 175; Republic v. Demetriades
(1977)3 C.L.R. 213; DecisionsNos. 557/61 and 1264/61 of the Greek Council 20 of State. Recourses. Recourses against the decision of the respondent to promote theinterested parties to thepost of "Proistameni Ypiresias Έ ' " (Administrative Staff) and "Proistameni Ypiresias *B*" 25 (Accounting Staff) in preference and instead of the applicant. A. Eftychiou, for applicant in Case No. 61/
- C. Anastassiades, for applicant in Case No. 80/
- A, Hjiloannou, for respondents. Cur. adv. vult. 30 512 3 C.L.R. Arsalides and Another v. CYTA STYLIANIDES J. read the following judgment. Theapplicants in these two cases are officers of the respondent Authoritythe Cyprus Telecommunications Authority. The Authority by its organs, as set out in the General Staff Regulation of the 5 Cypras Telecommunications Authority, filled in four "first entry and promotion'* posts by thepromotion of theinterested parties in preference to the applicants. The applicant in Case No. 61/82 challenges the decision for the promotion of all four interested parties, namely, 10 Georghios Hambalis and Yerolemos Yerolemou, who were promoted to "Proistameni Ypiressias *B*" (Administrative Staff), and Theologhos Kounias and Costas Cleanthous, who were promoted to "Proistameni Ypiresias ' B ' " (Accounting Staff), whereas the applicant in Case No. 80/82 challenges only 15 the promotion of Theologhos Kounias. Asbothrecoursesattack thesameadministrariveactsandcommon points are involved,one judgment for both cases satisfies the interests of justice, as the issues raised are determined. It is alleged by the applicants that the subjudice decisions 20 are invalid as:- 25 (a) They were taken on the basis of a non-existent Regulation in the sense that the said Regulation is ultra viresthe power vested in the Authority by s.43 of Law, Cap. 302; that it was not approved by the Council of Ministers and not published in the Official Gazette of the Republic; (b) That the posts in question were"first entry and promotion" postsand, therefore, only persons holding a postof theimmediate lowergradecould bepromoted; 30 (c) The decisions are faulty for lack of due inquiry and due reasoning; (d) They were taken under a misconception of law; and, (e) The respondents failed to select the best suitable officers, i.e.the applicants insteadof theinterestedparties. 35 The Authority was established during the colonial administration by the Inland Telecommunications Service Law» Cap.
- This Law was amended by Laws No. 20/60, 21/60, 34/62, 25/63 and 54/
- 513 Styliarides J. ArnuMes M 4Aaotter v. CYTA
(1983)Under Article 122 of the Constitution "public service*' includes service under the Cyprus Inland Telecommunications Authority. Under Article 125 of the Constitution the Public Service Commission, established by Article 124, had exclusive powers regarding, inter alia, appointments, promotions and 5 transfersoftheofficers andservantsoftherespondentAuthority. DuetotheeventsofDecember, 1963,thatPublicServiceCommission ceased to function properly and in 1967 by Law 33/67 another Public Service Commission, a different one, was setup,about theconstitutionality of someaspectsofwhichIrefrain 10 from expressing any opinion as it is unnecessary in this case. This new Public Service Commission, beiugan organ created by law, possesses the power laid down therein. Matters concerning the staff of the respondent Authority are outside the ambit of its authority. After the promulgation of Law 15 33/67 the Public Service Commission, established under the Constitution, which had competence to make, inter alia, appointments and promotions in relationto the personnel of the respondent-Authority, ceased to exist. Prior to Independence the respondent-Authority in virtue of 20 s.10
(1)had statutory power to appoint, etc., a General Manager,a Secretary,and such other officers and servants as might benecessaryfor thepurposes oftheLaw. Thisstatutory provision, being inconsistent with Articles 122, 124and 125of the Constitution, was not saved by Article
- ID 1963, as 25 there was in existence and functioning the Public Service Commission, exercising, under Article 125, exclusively powers regardingthe officers and servantsof the respondent-Authority, s.l0(l) was repealed and substituted by s.4ofTheTelecom- 30 munications Service (Amendment) Law,
- The new section 10
(1)reads:"ThereshallbeappointedaGeneralManager,aSecretary and such other officers and servants of the Authotity as may be necessary for the purposes of this Law". 35 After the enactment of Law 33/67 there was no authority <*pjpetent w relation to penoanel matters. (Bagdassarian nj Tfm. pkaricitv Authority of ^Cyprus
(1968)3 CL.R. 79*·'••-rr-s--.-, . Zypws] Tekfopwmtnications Authority,
(1970)3 C.L.R. 225; Vincent Pmtrps v. Tfc'Cyprus 40 514 3 C.L.R. Arsalides and Another v. CYTA Stylianides J. Telecommunications Authority,
(1970)3 C.L.R. 281). To remedy this situation, and until the people of Cyprus expressed their opinion on the matters, Law 61/70 - The Public Corporations (Regulation of Personnel Matters Law), 1970 -was enacted. Section 3
(1)conferred to therespective Corporat ions the power of appointment, promotion, transfer, etc., of their personnel. Subsections 2 and 3 of s. 3 read as follows:"3.-(l) 10 15 20 25 30 35
(2)Τηρουμένων τών διατάξεων τοΰ εδαφίου
(3), οΙαδήποτε τών έντω έδαφίω
(1)αναφερομένωναρμοδιοτήτωνασκείται υφ* έκαστου 'Οργανισμού συμφωνώ* προς τάς διατάξεις τοΰ οίκείου νόμου ή"οίωνδήποτε δυνάμει αύτοϋεκδοθέντων ή έκδοθησομένων κανονισμών ή κανόνων, τάς ρυθμίζουσας τό Θέμα έν σχέσει πρόξ τό όττοϊον άσκεϊται ή άρμοβιότης.
(3)'Οσάκις ό οΙκεΐος νόμος δέν περιλαμβάνη διάταξιν ρυθμίζούσαν ή χορηγούσαν είς τόν 'Οργανισμόν έξουσίαν προς εκδοσιν κανονισμών ή κανόνων ρυθμιζόντων οιονδήποτε τών θεμάτων έν σχέσει προς τά όποια δύναται νά άσκηθη" Οπό τοΰ 'Οργανισμού Αρμοδιότης δυνάμει τοΰ εδαφίου
(1), ό οΙκεΐος νόμος θά έρμηνεύηται καΐ έφαρμόζηται ώς έάν περιελαμβάνετο έν αύτώ διάταξις χορηγούσα είς τόν Όργανισμόν έξουσίανπροςεκδοσιν κανονισμών ή κανόνων ρυθμιζόντων τό θέμα τούτο". C3.H1) .
(2)Notwithstanding the provisions of sub-seection 3, any of the competences referred to in sub-seection 1 is exercised by each organisation in accordance with the provisions of the relevant law or under any rules or regulations issued or to be issued by virtue of this law, regulating the matter in respect of which the competence is exercised.
(3)When the relative law does not include a provision regulating or granting to the Organisation the power to issue rules or regulations regulating any of the matters in respect of which competence may be exercised by the Organisation by virtue of sub-section
(1), the relative law will be construed and applied as if it included in it provisions granting the organisation power to issue rules and regulations regulating this matter11). 515 Slylianides J. Arsalides and Another v. CYTA
(1983)The Authority was empowered by s.43 of the basic Law. Cap. 30? (Law No. 67/54), with the approval of the Governor, now Council of Ministers, to make regulations not inconsistent with the provisions of the Law or any other Law in force for the time being, to be published in the Gazette, "for the better 5 carrying of this Law into effect". Without prejudice to the generality of this power, certain matters, which could be regulated, are set out in paragraphs (a), (b), (
- c)and (
- d)of that section. Until the enactment of Law 61/70 no regulations relating to 10 appointment, promotion, etc., of the officers or servants of the Authority were made in virtue of the said power. The subjudice promotions were made not by the Board of the Authority but by subordinate organs and in accordance with the General Staff Regulation approved by the decision of the 15 Board of the Authority on 27/7/77. This Regulation provides, inter alia, for the classification of the personnel, the terms and conditions of appointment, permanent emplacement, promotion, transfer, disciplinary proceedings and dismissal. The schemes of service for the 20 various post, and particularly for the post for which the sub judice decisions, are also part of this General Regulation. It is common ground that this Regulation was never placed before the Council of Ministers for approval and was never published in the Official Gazette of the Republic. 25 In Constantinou v. C.Y.T.A.,
(1980)3 C.L.R. 243, a Judge of this Court ruled that the said Regulation constitutes only "internal rules*' of the Authority and, notwithstanding the fault of not being approved by the Council of Ministers and not published in the Gazette, pronounced for their validity. 30 Their description as "internal rules" or "regulations", though not justifiable by their title and contents, does not change their legal position : they are nothing else but regulations. s The legislation is usually a skeleton piece of legislation and leaves to be filled up in substantial and material parts by the 35 action of rules or regulations. (Institute of}Patent Agents, [1894]63 L J . P.C. 74). It is a cardinal principle of Law, embodied in s.7 of the Interpretation Law, Cap. 1, that everyLaw and any public instrumentmade or issued under any 516 3 C.L.R. 5 Arsalides and Another v. CYTA Stylianides J. Law or other lawful authority and having legislative effect shall be published in the Official Gazette. Relevant is also Article 82 of the Constitution. This is in accord with justice and common sense. A citizen is presumed to know the Law, and "Law" includes validly made subsidiary legislation. The publication in the Official Gazette is a fundamental obligation of the State and any law making body in order to ensure that the irrebuttable presumption of the knowledge of the Law does not lead to absurdities and to the detriment of the citizen. 10 Subsidiary legislation is made under the authority of an enabling Law. The primary legislative authority in a country is the legislature - during the autocratic days of the colonial administration the Governor and after the establishment of the Republic the House of Representatives. The words "for the 15 better carrying of this Law into effect" in s.43 of Cap. 302 are very wide indeed. The respondent - Authority, in order "to carry the Law into effect " has, inter alia, to appoint personnel, confirm, emplace on permanent or pensionable establishment, promote, transfer, retire and exercise desciplinary 20 control over such personnel. If the aforesaid section did not empower theAuthority to make regulations about its personnel, then s. 3 of Law 61/70 confers such power. In any view of the law the approval of the Council of Ministers and the public ation in the Official Gazette were sine qua non for the validity 25 of this Regulation.' The judgment of the Judge of this Court in Constantinou v. C.Y.T.A., (supra), is not binding on another Judge of the same Court; for the reasons aforesaid I differ from it. In view of the aforesaid the sub judice decisions taken at the 30 first step by the Personnel Committee (" 'Επιτροπεία Προσωπι κού") established under the said General Regulation, confirmed by the Director-General and, after complaint, reviewed and approved by the Board of the authority, as they purported to have been made and taken under an invalid Regulation, are 35 faulty. 40 The Regulation, after the issue of its vaUdity was raised and argued before this Court, received the approval of the Council of Ministers andwas published in theOfficial Gazette on 26/7/82 under Notification No. 220. In this publication it is expressly stated that it was made in virtue of s.43. 517 Stylianldes J. Arsalides and Another v. CYTA
(1983)It was argued by counsel of the respondent that, though the matter was raised before theCourt and actually written address wasfiled by the advocate of the oneof theapplicants,elaborating on this issue, as the Regulation received the approval of the Council of Ministers and was published in the Official 5 Gazette of 26/7/82 with retrospective effect from 21/11/77, the decisions challenged are valid. 1need not embark on theeffect of retrospective legislation or whether the Regulation or its material part for this case is substantive or procedural in character. The question that falls 10 for determanation is whether by the retrospective operation of this Regulation the fault of the administrative acts challenged was remedied. In Georghiades v. TheRepublic of Cyprus
(1966)3 C.L.R. 252, the sub judice decision wastaken bytheGreekmembers 15 of the Public Service Commission established under the Constitution who did not, however, constitute a quorum. The Public Service Commission (Temporary Provisions) Law,1965 (Law No. 72/65), s.5, enacted after the judgment had been reserved,provided,ineffect, thatanydecisionoftheCommission 20 taken between the 21st December, 1963, and the date of the coming into operation of such Law, witha quorum ofevenless than five members (three if the Chairman is present and four otherwise) should be deemed to have been lawfully taken and to be valid from the point of viewofconstitution andquorum 25 of the Commission. Triantafyllides, J., as he then was, said at p.279:"Leaving aside any other question relating to the validity or Dot of such a retrospective provision as section 5-and I leave such matters entirely open-I amoftheopi- 30 nion that its properconstruction is that it couldnothave been intended, in the absence of express provision to that effect, to be applied toa decisionof theCommissionwhich was already subjudice and on which judgment had been reserved inrelation,inter alia, toitsvalidity from thepoint 35 of view of the existence of the.proper quorum. .-.-Moreover, opoe judgment has been reserved on the validity of a decision of the;Commission, as above, there 518 3 C.L.R. Amttdcs «ad Aaotkcr v. CYTA StytfwMcs J. is no more room for such decision to be "deemed" to be valid,becauseitsvalidityistobepronouncedupondefinitely by way of a judicial decision. 5 10 15 Also, if I wereto bo'J the contrary,and find that section5 wasintended toapplyeventoadecisionoftheCommission which was sub judice, as above, then section 5 would be, inmyopinion, unconstitutional tothatextent ascontravening the separation of powers under the Constitution and as interfering with the independenceoftheJudicialPower. by seeking to render valid ex post facto a decision, the determination of thevalidity ofwhichwasalready amatter within the province of the Judicial Power. (See in this respect also Kyriakopoulos on Greek Administrative Law, 4th Edition, Volume 1, p. 159). I am, thus, of the opinion thatLaw72/65,andparticularly section5thereof,cannot save the validity of the subjudice decisions which were taken by the Commission meeting at the time without proper quorum ." In Theofylactou v. The Republic of Cyprus,
(1966)3 C.L.R. 20 801, the same Judge, after referring to Georghiades case, said at p.810:- 25 30 35 "I am of the opinion that no different result can be reached with regard to the application of section 5of law 72/65 to a recourse, such as the present, where judgment had not yet been reserved, when section 5 was enacted, but which has been filed before its enactment andat the time of thefiling of which the defectin theconstitution of the Commission, which section5 purports to remedy, had beenexpressly raised as a ground of invalidity of the subjudicedecision.To apply thesaid section 5for the purpose of bringing about, ex post facto, the validity of the said decision, would lead to unconstitutionality, because it would amount, in effect, to interfering with the constitutionally safeguarded right of recourse under Article146". In A. Christodoulides v. The Republicof Cyprus, through the PublicService Commission,
(1967)3 C.L.R. 356, a Full Benchcase(Revisional Jurisdiction AppealNo. 25),Josephides, J., in delivering the judgment of the Court said at p.361:519 Stvlianides J. Arsalides and Another r. CYTA
(1983)"The learned trial Judge decided also the question with regard to the defect in the constitution of the Commission at the time of the making of the act. He said: *l am of the opinion that no different result can be reached with regard to the application of section 5 5 of Law 72/65 to a recourse, such as the present, where judgment had not yet been reserved, when section 5 was enacted but which has been filed before its enactment andat the time offilingof whichthe defect intheconstitution of the Commission, which section 5 purports to remedy, 10 had been expressly raised as a ground of invalidity of the subjudice decision'. The reasons given for that decision by the learned Judge were that if the effect of section 5 was to validate ex post facto a defective decision that would lead to an unconstitutionality because it would amount, in effect, to interfering with the constitutionally safeguarded right of recourse under Article 146 of the Constitution.... We may say that we are in full agreement with that reasoning and the conclusion reached". See also Costas Alkidas v. The Republic,
(1967)3 C.L.R. 191; loannis Josif v. The Cyprus Telecommunications Authority,
(1970)3 C.L.R. 225; Vincent Poulros v. The Cyprus Telecommunications Authority,
(1970)3 C.L.R. 281. In Demetrios Charalambous and Another v. The Cyprus Te- 25 lecommunications Authority,
(1974)3 C.L.R. 175, Triantafyllides, P., distinguished the previous decisions as follows:"In the present cases, however, the recourses had not yet been filed at the time when section 4 of Law 61/70 was enacted, after the making of the sub-judice promotion. 30 I can see, therefore, no reason for holding that it would be unconstitutional, as offending against the principle of "separation of powers4, to treat section 4 as applicable in relation to the validity of such promotion". In Greece—Case No. 557/61—the Greek Council of State 35 decided that a law cannot validate an administrative act otherwise invalid if an application for its annulment had already been filed prior to the enactment of the Law. A different view was expressed in Case No. 1264/61 and other cases. It is to be 520 15 20 3 C.L.R. Arsalidcs and Another v. CYTA StylianJdes J. noted that in Applicationfor Annulmentby Tsatsos, 3rd Edition,
(1971), at p.268, the view taken in Case No. 557/61 is considered the correct one. The decisions of foreign Courts of similar jurisdiction have 5 only persuasive authority. According to the doctrine of precedent (see The Republic of Cyprus v. Demetrios Demetriades,
(1977)3 C.L.R. 213)—a judgment of the Full Bench is binding on the members of this Court. Irrespective of the binding authority of Christodoulidescase (supra), I fully agree 10 and I have no reason to express any difference from that decision. s To sum up, the sub judice decisions for the appointment of the interested parties were taken under the General Staff Regulation of the Cyprus Telecommunications Authority. 15 The Authority is vested with power to make regulations "for the better carrying of the Law into effect" in virtue of the provisions of s.43 of The Telecommunications Service Law- Cap. 302, and s.3 of Law 61/
- The publication in the Official Gazette of such Regulation, made under an enabling Law, 20 is a sine qua non for its validity—(Section 7 of the Interpretation Law, Cap. 1). Furthermore the enabling laws provide that such regulations require the approval of the Council of Ministers and publication in the Official Gazette. As the Regulation, in 25 virtue of which the subjudice decisions were taken, is invalid, the decisions are faulty. The General Regulation, after these recourses were filed and the issue was raised, was approved by the Council of Ministers and was published in the Official 'Gazette on 26.7.
- Ithasa retrospective effect asfrom 21.11.
- 30 Legislation enacted after the filing of a recourse, challenging an invalid or unconstitutional administrative act, cannot render it.valid ex post facto as otherwise it would lead to an unconstitutionality because it would amount, in effect, to interfering with the constitutionally safeguarded right of re35 course under Article 146 of the Constitution. For the reasons I endeavoured to explain on the first ground raised, the subjudice decisions are not valid. In view of the aforesaid 1deem it unnecessary to deal with the other grounds raised. 521 StyUaaldcs J. ArariJdes tad Another v. CYTA (15t3) In the result the sub judice promotions are declared null and void and of no effect and are hereby set aside. In the circumstances of these cases I make no order as to costs. Subjudice decisions annulled. No order as to costs. 522 5