Act of Government—Termination of services cf member of the Public Service Commission—
(3)of the Public Service Law, 1967 (Law 33/67)for contravention of section 8of the Law andfor Q reason other thansuch a contravention—Anact ofGovernment within the ambit of Article 146 of the Constitution. Necessity—Law of necessity—Measures taken thereunderare subject to judicial control and scrutiny. 10 IS 20 This recourse was directed against the termination of the services of the applicant, a member of the Public Service Commission, by the President of the Republic,
section 4
(3)of the Public Service Law, 1967 (Law 33/67). Onthequestionwhethersuchterminationofservicesofa member of the Public Service Commissionfor a contraventionof section 8 of Law 33/67 is an **act of Government" outside the ambit of the jurisdiction of Article 146 of the Comtitition, evenassumingthat otherwisethe terminationof theservices of amemberof the Public Service Commission,
section 4
(3), in thepublic interest, for a reason other than contraventionof section 8, could befound to be an "act of Government". Held, that the vesting, by means of section 4
(3)of Law 33/07, in the President of the Republic of the right to terminate in the public interest the services of a member of the Public Service Commission is a legislative extension of the powers of the 783 Louca v. Republic
(1983)President of the Republicunder theConstitution which canonly be justified by the "law of necessity" in the same context in which the setting up by means of Law 33/67 of a new Public Service Commission, other than the one created by virtue of Article 124 of the Constitution is found to be justified by the 5 "law of necessity"; that measures taken in circumstances allegedlyjustifying resortto the "law ofnecessity" are subject to judicial scrutiny and control; that where, by resorting to the "law ofnecessity",therehavebeengiven bymeansof legislation, such as section 4
(3)of Law 33/67, extraconstitutional powers to 10 the President of the Republic to terminate the services of a member of the Public Service Commission which was set up
such Law, thus, unavoidably, eDtailing some interference bytheExecutivePower oftheStatewiththesecurity oftenureof an essentially independent organ of the State such as the Public 15 Service Commission, it would be entirely incompatible with the precept of the Rule of Law requiring the exercise of judicial control in connection with the application of the "law ofnecessity" to hold that a decision of the President to terminate the services of a member of the Pablic ServiceCommission -(which 20 has been taken in the course of the application of a by thegrace of the "law of necessity" justifiable exceptional legislative measure such as section 4
(3)of Law 33/67) - escapes judicial control, to an appropriate extent,
Article 146
of the Constitution, because suchdecision is an "act of Government"; 25 andthat,therefore,theterminationoftheservicesoftheapplicant both for a contravention of section 8 of Law 33/67 and for a reason other than such contravention, cannot be treated as being an act of Government. Order accordingly. 30 Cases referred to; Louca v. The President of the Republic
(1982)3 C.L.R. 905; Demetriou v. Republic, 3 R.S.C.C.121 at p. 128; Hadjianastassiou v. Republic
(1982)3 C.L.R. 1173; Attorney-General v. Ibrahim, 1964 C.L.R. 195; Georghiades v. Republic
(1966)3 C.L.R. 317; PapaPantelis v. Republic
(1966)3 C.L.R." 515; HadjiGeorghiou v. Republic
(1966)3 CX.R. 504; Georghiades v. Republic
(1966)3.C.L.R. 252; 784 35 3 C.L.R. 1 5 10 Loucaτ. Republic Bagdassarian v. Republic
(1968)3 C.L.R. 736; Poutros v.Cyprus Telecommunications Authority
(1970)3 C.L.R. 281; Iosifv. Cyprus TelecommunicationsAuthority
(1970)3C.L.R. 225; Messaritou v. Cyprus Broadcasting Corporation
(1972)3C.L.R. 100; Ploussiou v. CentralBank of Cyprus
(1973)3 C.L.R.539; Theodorides v. Ploussiou
(1976)3 C.L.R. 319; Christouv. Republic
(1982)3 C.L.R. 365; Aloupas v. National Bank of Greece
(1983)1 C.L.R.55; In re Georghiou
(1983)2 C.L.R.1. Recourse. Recourse against the decision of the President ofthe Republic whereby applicant's services as a member of the Public Service 15 Commission were terminated. E. Efstathiou with C. Anastassiades, for the applicant. CI.Antoniadeswith R. Gavrielides,Senior Counsel of the Republic, for the respondent. X. Xenopoullos, for the interested parties. 20 Cur.adv. vult. 25 TRIANTAFYLLIDES P. read the following judgment. On 1st September 1982 I delivered in this case an interim judgment (seeLoucav. ThePresidentof the Republic,
(1982)3C.L.R. 905) and Ineed not repeat itscontentswhich should bedeemed to be incorporated herein. By means of the said interim judgment I invited further arguments on,inter alia, the following issue: "
(4)Is the ter mination of the services of a member of the Public Service Commission
section 4
(3)of Law 33/67" - (the Public 30 Service Law, 1967)- "for a contravention of section 8 ofthe same Law an 'act of Government* outside the ambit of the jurisdiction of Article 146 of the Constitution, even assuming that otherwise the termination of the services of a member of the Public Service Commission,
thesaid section 4
(3),in 35 the public interest, for a reason other than contravention of section 8, could befound tobe an 'actof Government"'. Regarding theissueofwhether the terminationof the services 785 Triantafyllid.i p. Louca v. Republic
(1983)of a member of the Public Service Commission,
section 4
(3)of Law 33/67, is "an act of Government" I have had, consequently, the opportunity to hear further arguments; and not only in this case but also in the similar case of Anastassiou v. The Presidentof the Republic, (case No. 133/82, which is 5 pending, too, before this Court). It appears that the first occasion on which reference to the notion of an "act of Government", in relation to the extent of thejurisdiction
Article 146of the Constitution, was made in our case-law was in the case of Demetriou v. The
Republic, 10 3 R.S.C.C. 121, 128. In my opinion an "act of Government" is notas such subject to judicial control
Article 146
of the Constitution,in the same way as an "act of Government" escapes judicial control by means of the corresponding to that
Article 146
ju- 15 risdictions of the Councils of State in Greece and in France; and, actually, theprinciple thatan "act of Government"cannot be made the subject-matter of a recourse for annulmentappears to have,first, originated in France; andinGreece it was given, later,also statutoryeffect by meansof, interalia,section46
(3)of 20 Law 3713/1928. As regards Franceuseful reference may be made,to, among others, Waline on Droit Administratif, 9th ed.} pp. 217-225, paras. 357-366, De Laubadere on DroitAdministratif, 4th ed., vol. 1, pp. 235-242, paras. 413-425, Les Grands Textes Ad- 25 ministratifs, by Debbasch and Pinet,
(1970), pp. 369-374, para. 50, Odent on ContentieuxAdministratif, 2nd ed., pp. 298-307, Vedel on DroitAdministratif, 5thed., pp.305-310, LesGrands Arrets de la Jurisprudence Administratif, by Long, Weil and Braibant, 6th ed.,
(1974),pp. 10,334,511, andAuby and Drago 30 on ContentieuxAdministratif, 2nded.,vol. 1, pp.91-108, paras. 67-76. Also, as regards Greeceit is useful to refer to,amongothers, Στασινόπουλου, Δίκαιον τών Διοικητικών Πράξεων(Stassinopoulos on The Law of Administrative Acts)
(1951)pp. 34-38, 35 Στασινόπουλου, ΜαθήματαΔιοικητικούΔικαίου(Stassinopoulos, Lessons of Administrative Law)
(1957)pp. ,52-53, Κυριακο πούλου, 'Ελληνικόν Διοικητικόν Δίκαιον (Kyriacopoulos on Greek Administrative Law), 4th Ed. vol. C, pp. 107-110) Δένδια, Διοικητικόν Δίκαιον (Dendias on Administrative Law) 40 786 3 C.L.R. Louca v. Republic TriantitfylUdes P. 5th ed.( vol. A, pp. 152-159, Στασινόπουλου, Δίκαιον των Διοι κητικών Διαφορών (Stassinopoulos on the Law of Administrative Disputes)
(1964), pp. 176-180, Οικονόμου, Ό Δικαστικό* "Ελεγχο? της Διακριτικής 'Εξουσίας εν τη Δημοσία Διοικήσει 5 (Economou on The Judicial Control of Discretionary Powers in Public Administration)
(1965)pp. 28-29, ΔένΒια, Διο'κητικόν Δίκαιον-Διοικητική Δικαιοσύνη(Dendias on Administrative Law—Administrative Justice) 2nd ed., vol. C, pp. 269-270, Δεληκωστοπούλου, Διοικητικόν Δίκαιον (Delicostopoulos on 10 Administrative Law)
(1972)Part A, pp. 151-154, Τσάτσου, Ή Αίτησις 'Ακυρώσεως ενώπιον τοϋ Συμβουλίουτης Έπικρατίας (Tsatsos on The Recourse for Annulment before the Council of State) 3rd ed., pp. 175-186, Δαγτόγλου, ΓενικόνΔιοικητικού Δίκαιον (Dagtoglou on General Administrative Law)
(1977)15 vol. A, pp. 85, 145-146 and Πορίσματα Νομολογίας τοϋ Συμ βουλίου της Επικρατείας (Conclusions from the Case-Law of the Council of State) 1929-1959, p.
- For instances of "acts of Government"it is pertinent to refer to Εύρετηριον Νομολογίας Συμβουλίουτης Επικρατείας(Digest 20 of the Case-Law of the Council of State) 1961-1970, vol. 1, p. 138, paras. 754-761 and Εύρετηριον Νομολογίας Συμβουλίου της 'Επικρατείας (Digest of the Case-Law of the Council of State) 1971-1975, vol. 1, p. 77, paras. 1009-
- 25 There emerges, too, from the textbook of Dagtoglou, supra, (at p. 146) that though the Greek Constitution of 1975 safe guards, by means of its Article 20
(1), generaljudicial protection, nevertheless "acts of Government*', which are still not treated as administrative acts, escape judicial control by an administra tive Court. 30 As it is to be derived from Decision 31/1934of the Council of State in Greece an "act of Government*' is patently related to the exercise of the political power vested in the Government ("άναγομένου^προδήλως είς τήν τη* Κυβερνήσει άνήκουσανδιαχείρησιν της πολιτικής εξουσίας"). 35 It is not, however, really possible to define exhaustively what is an "act of Government", because, from the Frenchand Greek textbooks referred to earlier on in this judgment there seems to exist in this respect divers theories of law and, consequently, the established judicial approach to this matter is to decide on each 787 TriantafyUldes P. Louca v. Republic
(1983)occasion whether or not action taken by the Government isan "act of Government". Therehas,thus, gradually, beencreated a category ofmatters(suchasactionoftheGovernmentconnected with the relations of the Executive and Legislative Powers, decisions aiming at securing generally the internal and external 5 safety of the country, as well as action taken in the field of international relations) which come within the ambit of the notion of an "act ofGovernment", without suchcategory being exhaustive; it isclear, however, that especially in recent years there is a tendency not to enlarge this category, but rather to 10 restrict it. Reverting now to the issue of whether the termination of the services of a member of the Public Service Commission can be found to be an "act of Government" there should be observed, first, that though,
the Constitution, the members of the 15 Public Service Commission which was set up by virtue of Article 124of the Constitution were appointed bythe President of theRepublic their serviceswereneverterminated byhim,but
paragraph 5of the said Article 124,"on the like grounds and in the likemanner as ajudge of the High Court." On the 20 contrary,
section 4 of Law 33/67 the members of the Public Service Commission which was set up
such Law are appointed and removed from office by the President of the Republic. As it waspointed out in the interimjudgment in the present 25 case, and, later on, also in Hadjianastassiou v. The Republic,
(1982)3 C.L.R. 1173, the Public Service Commission which wasset up
Law 33/67isnot the same organ asthe Commission which wascreated byvirtue of Article 124of the Constitution and which ceased to function due to the abnormal 30 situation which,has been prevailing in Cyprus from 1963 onwards; moreover, the Commission provided for by Law 33/67 is an organ which wascreated validly in a manner justified by "the law of necessity." Before going any further I should state, at this stage, that in 35 view of theforegoing Ihave, eventually, reached now the conclusion thatArticle 1245 of the Constitution isnot applicable in respect of the termination of the services, for reasons of misconduct, including a contravention of section 8 of Law 788 3 C.L.R. Louca v. Republic Triantafyllides P. 33/67, of a member of the "new" -(created
Law 33/67)Public Service Commission; and, therefore, the only way in which such services can be terminated for misconduct is by a decision of the President of the Republic
section 4
(3)of 5 Law 33/67. Also, in my opinion, the temporary substitution of the provisions of Article 124.5 of the Constitution by the provisions of the said section 4
(3)isjustified by the "law of necessity" on thesamegrounds as theenactment of Law33/67; and what I havejust stated disposes, too, of issues
(1)and
(2)10 whichwereraised bytheinterimjudgment which was delivered in this case on 1st September 1982, In the present case I am not called upon to pronounce on whether the appointment of a member of the Public Service Commission,
Article 124of the Constitution, by the
Pre15 sident of the Republic (and up to December 1963, while the Turkish Cypriots were participating in the Government of the Republic, by the President and Vice-President of the Republic) amount to an "act of Government*'. So, I leave this issueentirely open. Nor do I have to determine now whether an ap20 pointment ofamemberofthePublicServiceCommission,
section 4 of Law 33/67,by the President of the Republic, isan "act of Government". Whathastobedecidedfor thepurposesofthiscaseiswhether ornot thetermination ofthe servicesof amember ofthePublic 25 Service Commission by the President of the Republic,
section 4
(3)of Law 33/67, is an "act of Government"; and, particularly, whether such termination is an "act of Government*' when it is a measure taken for an alleged contravention of section 8 of Law 33/67, as in the present instance. 30 As already stated the vesting, by the said section 4
(3), in the President of the Republicof therightto terminate in thepublic interest theservices ofa member ofthePublicServiceCommission is a legislative extension of the powers of the President of the Republic
the Constitution whichcanonly bejustified 35 bythe"lawofnecessity"inthesamecontextinwhichthesetting up bymeansof Law33/67ofa newPublicServiceCommission is found to be justified by the "law of necessity." It iswellsettled thatmeasurestaken incircumstancesallegedlyjustifying resort to the "law of necessity" are subject to ju789 TriautafyUides P. Louca v. Republic
(1983)dicial scrutiny and control; and reference, in this respect,may usefully be made to, inter alia, Attorney-General v.Ibrahim, 1964C.L.R. 195,Georghiades v. The Republic,
(1966)3 C.L.R. 317, PapaPantelis v. TheRepublic,
(1966)3 C.L.R. 515, HadjiGeorghiou v. TheRepublic,
(1966)3 C.L.R. 504, Georghiades v. 5 The Republic,
(1966)3 C.L.R. 252, Bagdassarian v. TheRepublic,
(1968)3 C.L.R. 736,Poutros v. TheCyprus TelecommunicationsAuthority,
(1970)3 C.L.R. 281, Iosif v. The Cyprus Telecommunications Authority,
(1970)3 C.L.R. 225, Messaritou v. The Cyprus Broadcasting Corporation,
(1972)3 C.L.R. 100, 10 Ploussiou v. The Central Bankof Cyprus,
(1973)3 C.L.R. 539, Theodorides v. Ploussiou,
(1976)3 C.L.R. 319, Christou v.The Republic,
(1982)3C.L.R. 365 and Aloupas v.National Bank of Greece,
(1983)1 C.L.R. 55. In my opinion where, by resorting to the "law of necessity", 15 there have been given by means of legislation, such as section 4
(3)of Law 33/67, extraconstitutional powers to the President of the Republic to terminate the services of a member of the Public Service Commission which was set up
such Law, thus, unavoidably, entailing some interference by the Executive 20 Power of the State with the security of tenure of an essentially independent organ of theStatesuchasthePublic Service Commission, it would be entirely incompatible with the precept of the Rule of Law requiring the exercise of judicial control in connection with the application of the "law of necessity" 25 tohold that a decision of thePresident toterminate the services of a member of the Public Service Commission—(which has been taken in the course of the application of a by the grace of the "law of necessity" justifiable exceptional legislative measure such as section 4
(3)of Law 33/67)—escapes judicial 30 control, to an appropriate extent,
Article 146of the Constitution, because suchdecision isan "act of Government". It iscorrect that recentlyinthecaseofInreGeorghiou,
(1983)2 C.L.R. 1, it was held that the validity of the appointment 35 of the Deputy of Attorney-General of the Republic, which was made by the President of the Republic by virtue of his powers
the Constitution and in circumstances which, also, justified its making on the strength of the "law of necessity**,couldnot beexaminedinthoseproceedingsincident- 40 790 3 C.L.R. Louca v. Republic Triantafyllides P. ally and in an ancillary manner; but, the present case isclearly distinguishable from the Georghiou case, supra, because on this occasion the validity of the termination of the services of the applicant by the President of the Republic isthe subject-matter 5 in this recourse and itsexamination is,therefore, not something to bedone incidentally and in an ancillary manner for the purposesoftheoutcomeofanother proceeding, asinthe Georghiou case, supra, but for the primary purpose of the determination of the present recourse. 10 For all the foregoing reasons it is no longer necessary or correct to assume (for the purpose of dealing with issue
(4)which was referred to at the commencement of this judgment) that the termination of the services of a member of the Public Service Commission, by the President of the Republic,
15 section 4
(3)of Law 33/67, for a reason other than a contravention of section 8of such Law, could be found to be an "act of Government", because, as already indicated above, such termination, for all the reasons set out hereinbefore, should not be found to be an "act of Government"; and, a fortiori, 20 jf the relevant decision of the President of.the Republic terminating the services of a member of the Public Service Commission is taken because of contravention of section 8 of Law 33/67then suchdecision, inviewofitsnature,cannot betreated as being an "act of Government". 25 Having disposed of, on the basis of what have already been stated in this judgment, of issues
(1),
(2)and
(4)which were raised by the interim judgment of 1st September 1982, I have decided not to deal as yet with issues
(3)and
(5)which were, also, raised by the said interim judgment, because such issues 30 relate to matters in respect of which it would not be necessary, or even proper, for me to reach a decision if either I do not possess jurisdiction to entertain this recourse
Article 146o
f the Constitution because,contrary to what I have found inthisjudgment,thetermination oftheservicesofthe applicant 35 in the present instance is an "act of Government", or because such termination, again contrary to what I nave held in this judgment, could not have been validly effected at all
section 4
(3)of Law 33/67 but only in the manner prescribed by Article 124.5 of the Constitution. 791 Triantafyllides P. Louca τ. Republic
(1983)I shall, therefore, allow this case to remain pending forthe period during which an appeal canbe made against thisjudment by any party to these proceedings andif such anappeal is made I shall await theoutcomeof the appeal. If no appeal is made I shall thenproceedtodecidefinallyabout the outcome 5 of this case bydealing, also, inter alia, with the aforementioned issues
(3)and
(5). Order accordingly. 792