clr/1983/1983_3_719.pdf

(1983)(b) Assuming that they survive' the Constituion, the Regulations have been repealed by virtue of Law 32/62, and. if not repealed expressly or by implication, they cannot be relied upon once Law 32/62 made provision for the same subject-matter by legislation enacted by the legislative machinery created by the Constitution. 5 The Regulations were made in 1945 at at time when Cyprus was a Crown Colony by the Governor of Cyprus, in exercise of the powers vested in him by the Supplies and Services (Transitional Powers) Act, 1945, as extended to the Colony 10 by the Supplies and Services (Transitional Powers) (Colonies, etc.), Order in Council. As the Act was due to expire on 10.12.1958, the Supplies and Services (Transitional Powers) (Continuation) Law No. 36/58,Cap. 175A,was passed on7.11. 1958 that came into operation upon the expiration of the Act. 15 By section 6 of the said Law the Regulations were "deemed to be made by the Governor under this Law and shall, with necessary modifications, have effect accordingly". Held, (after stating the principles governing interpretation of Constitutional provisions) (I) that all laws, including public 20 instruments, valid and in force on the date prior to the establishment of the Republic were saved and continued to be in force subject to the necessary modifications; that there is no difference in the expression "made by virtue of a Law" and "deemed to have been made under a Lawand haveeffect under 25 this Law*'which is the expression used in Cap. 175A; and that the Regulations were valid and in force on the date prior to Independence and they continued to be in force.

(2)That the Supplies and Services (Regulation and Control) Law, 1962(Law 32/62) isnot inconsistent with the Regulations 30 or Law Cap. 175A and therefore it has not repealed by implication the previous Law and the Regulations. Appeal dimissed. Cases referred to: Abeyesekera v. Jayatilake [1932] A.C. 260; Cambell v. Hall

(774)1 Cowp. 204; Sammut v. Strickland [1938] A.C. 678; 720 35 3 C.L.R. Vasslliko Cement Works v. Republic Christodoulou v. Republic,1 R.S.C.C. I at p. 4; Republicv. Zacharia, 2 R.S.C.C. I at p. 6; Sturgesv. Crowninshield, 4 L. ed. 529 at p. 550; 5 Jacobsonv. Commonwealth of Massachusetts, 49 L.ed. 643 at p. 648; Attorney-General for Ontario v. Attorney-General forCanada [1912] A.C. 571 at p. 583; River Weir Commissioners v. Adamson [1877] 2 A.C. 743 at p. 764; 10 Secretary of State v. Bankof India

(1938)65 Ϊ.Α. 286; Ozturk v, The Republic,2 R.S.C.C. 35 at p. 39; Irfan and Others v. Republic,3 R.S.C.C. 39; Kutner v. Phillips [1891] 2 O.B. 267 at p. 272; Watson v. Winch [1916] 1 KB. 688 at p.

1. 15 Appeal. Appeal against the interim decision of the President of the Supreme Court of Cyprus, (Triantafyllides, P.) given on the 19th June, 1982 (Revisional Jurisdiction Case No. 443/78)* whereby he pronounced on the validity of the Defence (Export20 ation of Goods) Regulations,
2. . A. Triantafyllides, for the appellants. CI. Antoniades, Senior Counsel of the Republic, for the respondent. Cur. adv. vult. 25 HADJIANASTASSIOU J.: The judgment of the Court will be delivered by Mr. Justice Stylianides. STYLIANIDES J.: This appeal is directed against an interim decision of the President of the Court whereby he pronounced for the validity of the Defence (Exportation of Goods) Regu30 lations, 1956 (hereinafter referred to as "the Regulations*'). • Reported in

(1983)3 C.L.R. 709. 721 StylianidesJ. Vassiliko CementWorksv.Republic

(1983)The appellants own and operate a cement factory that sells its products locally and abroad. The Minister of Commerce & Industry by decisions contained in letters dated 22.1.1979 and 26.2.1979 ordered that applicants should satisfy 70% of the needs of the local market in cement as a condition pre- 5 cedentfor theissuetothem ofexport licence. Theexportprices abroad werehigherthan thelocalprices. Therespondent relied on regulation 3 of the Defence (Exportation of Goods) Regulations, 1956. The appellants challenged thevalidity of these RegulationsandthetrialJudgedecidedthatthesaidRegulations 10 are valid and in force. * Counsel for the appellants submitted that the Regulations do not continue to be inforce after the establishment of the Republic on the 16th August, 1960, inasmuch as:(

1. a)They are not a "Law" within the meaning of Article 15 188 of the Constitution; and, (
2. b)Assuming that they survive the Constitution, the Regulations have been repealed by virtue of Law 32/62, and, if not repealed expressly or by implication, they cannot be relied upon once Law 32/62madeprovision 20 for the same subject-matter by Legislation enacted bythelegislativemachinerycreatedbytheConstitution. Cyprus wasa Crown Colony and as from late 1931it had no representative Government at all. The British Crown - and by this we mean not the Crown in 25 Parliament - had a prerogative right to legislate exercisable by Orders in Council, proclamations or letters patent. (Abeyesekera v. Jayatilake, [1932] A.C. 260). In Colonies, where Legislature has been granted, the prerogative power to legislate could not beexercisedunlesssuchpowerwasexpresslyreserved. 30 If, however, the representative Government was revoked, the prerogative power to legislate revived. (Campbell v. Hall,

(1774)1 Cowp.

1. SeealsoSammutv. Strickland, [1938]A.C. 678). By section 1of the Colonial Laws Validity-Act, 1865, "an 35 Act of Parliament, or any provision thereof, shall be said to extend toanyColonywhenitismadeapplicabletosuch Colony by the express words or necessary intendment of any 'Act of 722 s. 3C.L.R. VassilikoCementWorksτ.Republic StylianidesJ. Parliament'." Usually Parliament preferred to authorize the issue of Orders in Council by the Crown when Parliamentary authority was necessary or desirable for legislation in respect of a Colony. 5 The Imperial Supplies and Services (Transitional Powers) Act, 1945, was made applicable to Cyprus by Order of His Majesty in Council published in Supplement No. 2A to the Cyprus Gazette of the 7th February,
2. The operation of thisAct was repeatedly extendedandbytheOrderof Her Majesty 10 in Council the Supplies and Services(Continuance)Order, 1957, theoperation of theAct was extended until 10.12.
3. By Order in Council of 27.11.57 the Governor of Cyprus was authorized toprovide by order for thecontinuation in force of Regulations and modifications, etc.,of same until 10.12.
4. The Governor 15 of Cyprus, inexerciseof thepowers vestedinhim by the Supplies and Services(Transitional Powers) Act, 1945, as extended tothe Colony by the Supplies and Services (Transitional Powers) (Colonies, etc.) Order in Council,made the Defence (Exporta­ tion of Goods) Regulations, 1956»(the Regulations in quest20 ion),published under Notification No. 378 in Supplement No.2 to the Gazette of 10.5.
5. As the Act was due to expire on 10.12.58, the Supplies and Services (Transitional Powers) (Con­ tinuation) Law No. 36/58, Cap. 175A, was passed on 7.11.58 that came into operation upon the expiration of the Act. 25 By section 6 of the said Law the Regulations were "deemed tobemadebytheGovernorunderthisLaw andshall,withneces­ sary modifications, have effect accordingly". On the 16th August, 1960, as a result of the London and 7urich Agreement and the Cyprus Act of Parliament of the 30 UnitedKingdom,anewState-theRepublic of Cyprus -emerged from thestatus of dependency by succession from ametropolitan country. On the said date by the emancipation of the former British Colony of Cyprus the independent Republic of Cyprus came into being. 35 Upon change of sovereignty there is a continuity of Law between theformer Colony and thenew State. The bulk of the legal system of the predecessor State is left unaffected by the change. Somuchonly of the Law of thepredecessor Stateas is repugnant to that of the successor State does not revive the 723 Stylianides J. VassiUko Cement Works v. Republic (19S3) change of sovereignty and so much as is not repugnant does. Such a conclusion is consonant with the thesis that Law is an emanation of thesocial orderandisnot thecreature of abstract sovereignty, and it is compelled by considerations of stability. Law is designed to avoid social and economic anarchy, which 5 would result from the automatic termination of juridical institutions with the hiatus in sovereignty. (See D. P. O*Cornell InternationalLaw, 2nd Edition, Volume I, pp. 388-389). Article 188of the Constitution embodied the aforesaid principle. Subject to the provisions of the Constitution and to 10 certain transitional provisions, all Laws in force on the date of the coming into operation of the Constitution, until amended whether by way of variation, addition or repeal, by any Law made under the Constitution, continued inforce on or after the estabhshment of the Republicand are construed from that date ]5 and applied with suchmodification asmaybenecessary tobring them into conformity with the Constitution. "Law" includes any public instrument made before the date of the coming into operation by virtue of such Law. In the first judgment of the Supreme Constitutional Court, 20 delivered on the 16th December, 1960- Miltiades Christodoulou and The Republic of Cyprus,1 R.S.C.C. 1, at p.4-we read:"It isproper to begin byobserving that the legal provision under consideration, if otherwise valid, is saved and continues in force by virtue of Article 188of the Constitution. 25 In this respect the Court regards the phrase 'all laws in force on thedate of thecomingintooperationof this Constitution* inparagraph 1 of the said Article,asmeaningall lawsvalidlyinforceonthedateofthecomingintooperation oftheConstitution, andtheCourtfurther considersthat the 30 word 'laws' also includes all subsidiary legislation. It is clear, however, that the Constitution, by such transitional provision, aimed only at ensuing the continued application of existing legislation, notwithstanding the creation of the Republicof Cyprusonthe 16thAugust, I960,but itdidnot 35 have, and could not havehad, as its object to render valid ex post facto a legislative provision which, for one reason or another, wasinvalid ona dateprior tothe 16thAugust, 1960." 724 ν 3C.L.R. VassllikoCementWorksv. Republic StylianidesJ. In TheRepublic v. Charalambos Zacharia, 2 R.S.C.C. 1, at p.6, Forsthoff, P., said:- 5 10 "Article 188has to be considered inthegeneral framework of the change of sovereignty which has taken place on the 16th August,
6. On the said date by the emancipation of the former British Colony of Cyprus the independent Republic of Cyprus came into being. In accordance with the most widely accepted principles of International Law achange of sovereignty of thisnature would not disrupt the 'continuity of law' between the former Colony and the new Republic. Nevertheless, it appears thatex abundantecautelaArticle 188was included in the Constitution". Counselfor theappellantsreferred theCourttotwoAmerican 15 cases on the interpretation of constitutional provisions. The material passages of thejudgment inSturges v. Crowninshield, 4 L. ed. 529, is to be found on p.
7. It reads:- 20 25 30 35 "__ it may not be improper to promise that, although the spirit of aninstrument, especially of a constitution, is tobe respected not less than its letter, yet the spirit is to be col­ lectedchiefly from itswords. Itwould bedangerous inthe extremetoinfer from extrinsic circumstances, thatacase for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict witheachother,wherethedifferent clauses of aninstrument bear upon eachother,and would be inconsistent unless the natural and common import of words be varied, con­ struction becomes necessary, and a departure from the obvious meaning of words is justifiable. But, if, in any case, theplain meaningof a provision, notcontradictedby any other provision in the same instrument, is to be dis­ regarded, because we believetheframers of thatinstrument could notintendwhat they say, itmust beonein whichthe absurdity andinjustice of applying theprovision tothecase would be so monstrous that all mankind would, without hesitation, unite in rejecting the application." In HenningJacobson v. Commonwealth of Massachusetts, 49 L. ed. 643, Mr. Justice Harlan,indelivering the opinion of the Court, said at p. 648:725 Stylianides J. Vassiliko Cement Works v. Republic

(1983)"Undoubtedly, as observed by Chief Justice Marshall, speakingfor thecourt inSturges v.Crowninshield, 4Wheat. 122, 202, 4 L. ed. 529, 550, 'the spirit of an instrument, especially of a constitution, is to be respected not less than its letter; yet the spirit is to be collected chiefly from its 5 words'. We have no need in this case to go beyond the plain, obvious meaning of the words in those provisions of the Constitution which, it is contended, must control our decision." InconstruingaConstitutionthefundamental rule,towhichall 10 otherrulesaresubordinate,isthatitshouldbeconstruedaccording to the intent of the framers. Courts have to find out the expressed intention from the words of theConstitution itself. They are not at liberty to give a speculative opinion and when themeaningofwordsisplain,itisnottheduty ofCourtstobusy 15 themselves with supposed intentions. The Privy Council in Attorney-General for Ontariov. Attorney-General for Canada, [1912] A.C. 571, at p. 583, observed:"In the interpretation of a completely self-governing Constitution, founded upon a written organic instrument , 20 ifthe text isexplicit, it isconclusive alike in what itdirects and what it forbids but it is also plain that if words or phrasesareusedina specialsense,theliteralmeaningofthe words should be qualified in that sense." In River WeirCommissioners v.Adamson, [1877]2A.C. 743, 25 at p. 764, it was said:* "In all cases, the object is to see what is the intention expressed bythewordsused. But,from the imperfections of language, it is impossible to know that intention without enquiring further and seeing what the circumstances were 30 with reference to which thewordswereused,andwhatwas the object, appearing from those circumstances, which the personusing them had inview; for themeaningof words variesaccordingto the circumstances with respectto which they were used." , 35 Astatuteisprimafacie tobeconstrued aschangingthelawto nogreaterextentthanitswordsornecessaryintendmentrequire. (Secretaryof State v. Bank of India,

(1938)65 LA. 286). A 726 ^ 3 C.L.R. VassilHio Cement Worksv. Republic Stylianides J. Constitution or other enactment is not to be interpreted in a narrow and pedantic sense but liberally, and the interpretation tobeplaced should besuchaswould besteffectuate the purpose rather than restrict or defeat it. 5 It is theduty of this Court to interpret the Constitution as it finds it and in accordance with the undisputed principle that effect must be given to the clear meaning of its provisions. (Turhan M. Ozturkv.The Republic of Cyprus, 2R.S.C.C. 35,at p.39). 10 The Defence (Importation of Goods) Regulations, 1956,, Notification 377,Supplement No. 3to the Official Gazette No. 3943of 10.5.56,werealso continued inforce byvirtue of s.6 of the Supplies and Services (Transitional Powers) (Continuation) Law, Cap. 175A. In Hussein Irfan &Othersv. The Republic, 15 3 R.S.C.C. 39, it was said:"These Regulations come within the ambit of 'Law * as defined in paragraph 5 of Article 188 and have continued in force under the said Article". The words of Article 188 material for the determination of 20 this appeal are plain and unambiguous. The intention of the drafters of the Constitution springsclearly from the wordsthey used. Alllaws,includingpublicinstruments,vaUdand in force on the date prior to the establishment of the Republic were saved and continued to beinforce subject to thenecessarymo25 difications. We see no difference in the expression "made by virtueof a Law" and "deemed tohave beenmadeunder aLaw and have effect under this Law." The latter is the expression usedinCap. 175A. TheRegulationswerevalid andinforceon thedatepriortoIndependenceandtheycontinued tobeinforce. 30 It is noteworthy that for two decades the Defence Regulations were being treated by the Courts as valid and applicable. On 17thMay, 1962, theSuppliesand Services(Regulationand Control)Law, 1962(LawNo.32/62)wasenacted. Toacertain extent it makes similar, though not identical, provisions as the 35 Defence Regulationsinquestion. Law32/62isnot inconsistent with the Regulations or Law, Cap. 175A. Therefore, the later Law has not repealed by implication the previous Law and the Regulations. (Maxwell on Interpretation of Statutes, 12th Edition, pp. 191-193; Crates on Statute Law, 7th Edition, p. 727 StylianidesJ. VassilikoCementWorksv.Republic

(1983)366; Halsbury*s Lawsof England, 3rd Edition, Volume 36, p. 466). A later Lawwithprovisions similar,thoughnot identical,toa previous Lawdoesnot abolishthelatter. Iftheprovisions of a later enactment aresoinconsistent withorrepugnant tothepro- 5 visions of an earlier one that thetwocannot stand together, the earlier is abrogated by the later. (Kutnerv. Phillips, [1891] 2 Q.B. 267, per A. L. Smith, L.J., at p. 272). In Watson v. Winch, [1916j 1K.B. 688, Lord Reading, C.J., had this to say at p. 690:- 10 "In this particular case a further point arises. _ The repealingstatute,i.e., theLocal GovernmentAct, 1888,has made other provisions for bicycles. It would be odd that a by-law should exist dealing with bicycles in streets under a local Act concurrently with another code possibly in- 15 consistent with it. AsbytheLocal Government Act,1888, bicyclesareto bedealt with as 'carriages* under theHighwayActs and provisions enabling local authorities to make by-lawsregulatingtheuseofbicyclesarerepealed, theclear intention of the Act is to substitute the provisions of the 20 Highway Acts for previously existingby-laws andto repeal the by-laws, in accordance with the rule that when a later statute is passed inconsistent with an earlier the later prevails and the earlier is pro tanto repealed". In the circumstances of this case neither the provisions of 25 Article 188 of the Constitution nor any of the principles of interpretation of statutes militate against the continuation in force of Cap. 175A and the Regulations in question. The Courts lean against the repeal of Laws. The enactment of Law 32/62 with provisions similar and/or 30 akinto Law Cap. 175Adonot in any wayaffect thevalidity of Cap. 175A. For the aforesaid reasons this appeal fails and it is hereby dismissed with no order as to costs. Appeal dismissed. No order as to costs. 35 728