clr/1983/1983_3_859.pdf

(3)and

(4)of the National Guard Laws— Whether Minister bound to refer applicationfor release to the advisory Committee set up by section 4

(4)or whether it was within his discretion to do so. Statutes—Proviso—Function of. 10 IS The respondent, who was born on 25.11.1941 was on 6.7.1973 exempted from service in the National Guard by virtue of the provisions of s.4

(3)(

1. c)of theNationalGuard Law as permanently residing out of Cyprus. When the circumstances of his exemption ceased to exist, he enlisted in the National Guard on 11.7.1978 for a 12 month service. On 27.12.1978 he sub­ mitted an application to the Minister of Defence through the Commander of the National Guard praying for his release from the Force on the ground of, inter alia, special circum­ stances under s.9(
2. l)of the National Guard Laws. On 26.1.1979 he submitted another document entitled "Υπεύθυνος Δήλωσης Οίκογενειακης Καταστάσεως"(Res­ ponsible Statement of Family Situation). 20 The facts relevant to the circumstances on which he based his such application were set out and specified in his application and the said statement. The Commander of the Force sum- 859 Republic v. loannldes

(1983)marized the facts as stated above and commented that they do not constitute special circumstances. The file was transmitted to the Minister who decided to reject the application, anrf *»ϊ· -dedsion~was~communicated_to~the respondent by letter dated 7.2.1979. Upon a recourse by the respondent against the rejection of his application the trial Judge decided that the Minister had a duty to refer the case for consideration and inquiry to the Advisory Committeeestablished under s.4

(4)of the Law and obtain its conclusions before taking his decision, and as the 10 Commander of the National Guard was not the proper organ to advise the Minister on the matter, the proper procedure was not followed, the exercise of the discretion of the Minister was defective and the subject decision was annulled. Upon appeal by the Minister the sole question for determination was whether the Minister was bound to refer similar cases to theAdvisory Committeeor was it within his discretion to do so or not. 15 The relevant statutory provisions were section 4

(4)of the National Guard Law, 1964 (as introduced by means of Law 20 14/66) and the proviso thereto (as added by means of section 2(d) of Law 33/76)) Held, after dealing with the function of a proviso, that the proviso to section 4

(4)of the Law does no more than extend the competence of the Advisory Committee in cases other than 25 those relating to section 4

(3); that the Minister has to refer any matter in relation to sub-section 4

(3)to theAdvisoryCom­ mittee but he has no duty to refer to this Consultative body the ascertainment of facts in all other categories enumeratedtherein; that the Minister has a discretion to refer to theAdvisory Com· 30 mittee for the ascertainment of the true facts of other cases; that in the present case, which is outside the ambit of section 4

(3)theMinister hadadiscretionwhether torefer itfor ascertain­ ment of the true facts to the Advisory Committee or not; that all the facts were set out intheapplication of27.12.1978and in 35 the "responsible statement" and the report of theCommander of the Force contained no additional facts; that the ultimate decision was within the powers of the Minister who determined the application upon the factual situation placed before him 860 5 \ \ \ \ \ \ t 3 C.L.R. Republic v. loamiides bytherespondenthimself;thattheMinistercouldinLawdismiss the application; accordingly the appeal must be allowed. Appeal allowed. Cases referred to: 5 Muilins v. Surrey Treasurer [1880] 5 Q.B.D. 170at p. 173; Duncan v. Dixon [1890] 44 Ch. D. 211 at p.215; Torondo Corporation v. Attorney-General of Canada [1946] A.C. 32 at p. 37; Rhondda U.D.C. v. Tqff Vale Railway Co.[1909]A.C. 253 at 10 p.258; CommissionerofStampDutiesv.Atwill[1973] 1All E.R. 576at p.

1. Appeal. Appeal against the judgment of a Judge of the Supreme 15 Court of Cyprus (Sawides, J.) given on the 9th December» 1982 (Revisional Jurisdiction Case No. 95/79)* whereby the decision oftheMinister ofInterior nottodischargetherespondent from the National Guard was annulled. CI. Antoniades, Senior Counsel of the Republic, for the 20 appellant. L.N. Clerides, for the respondent. Cur. adv.vult. TRIANTAFYLLIDES, P.: The judgment of the majority of the Court willbedelivered by Mr. Justice Stylianides. Mr. Justice 25 Pikis will deliver a dissenting judgment. STYLIANIDES,J.: Thisappealisdirected against thejudgment of a Judge of this Court whereby the decision of the Minister oftheInteriornottodischargetherespondentfrom theNational Guard was annulled. • 30 The respondent was born on 25.11.1941 at Kyperounda villageandleft thiscountry in
2. Hestayedabroadfrom 1961 until 2.4.
3. He acquired various professional qualifications in the United Kingdom and worked in some African and Arab countries. 35 On 6.7.1973, by virtue of the provisions of s.4

(3)(y)of the * Reported in

(1983)3 C.L.R. 170. \ \ ' "861 Siylianides J. loannides v. Republic

(1983)National Guard Law, he was exempted from service in the National Guard as permanently residing out of Cyprus; when the circumstances of his exemption ceased to exist, he was obliged to enlist and serve in the National Guard—(section 4

(5)). Hejoined the National Guard on 11.7.1978 for a 12- 5 month service, having regard to the date of his birth and the regulations in force at the time his age-group was originally called up. The respondent on 27.12.1978 submitted an application to the Minister of Defence through theCommanderof theNation- 10 al Guard praying for his release from the Force on the ground of, inter alia, special circumstances under s.9(l) of theNational Guard Laws. On 26.1.1979 he submitted another document entitled " Υπεύθυνο* Δήλωσι$ ΟΙκογ£νειακή$ Καταστάσεως" (Respon- 15 sible Statement of Family Situation). The facts relevant to the circumstances on which he based his such application were thus set out and specified in his application and the said statement. The Commander of the Force summarized the facts as stated above and commented 20 that they do not constitute special circumstances. The file was transmitted to the Minister who decided to reject theappli­ cation, and this decision was communicated to the respondent by letter dated 7.2.1979. The learned trial Judge decided that the Minister had a duty 25 to refer the case for consideration and inquiry to the Advisory Committee established under s.4

(4)of the Law and obtain its conclusions before taking his decision, and as theCommander ,of the National Guard was not the proper organ to advise the Minister on thematter, theproper procedure was not followed, 30 the exercice of the discretion of the Minister was defective and the subject decision was annulled. The question, therefore, that poses for determination is whether the Ministeris boundto refer similar cases to theAdvi­ sory Committee or is it within his discretion to do so or not. 35 The answer rests on the interpretation of the relevantstatutory provision. Section 4 when originally enacted consisted of three sub.862 3 C.L.R. loannMes v. Republic StyUanides J. sections. Subsection

(3)enumerated the categories of persons exempted from theobligation of service intheNational Guard. Law No. 14 of 1966 added subsection

(4)which reads as follows:5 10 15 20 25 30 , 35 "

(4)Ό 'Υπουργός αποφασίζει έπϊ παντού θέματος ανα­ φυομένου έν σχέσει μέ τήν έξαίρεσιν στρατευσίμων έπϊ τη βάσει τοϋ εδαφίου

(3). Προς ιόν σκοπόν τούτον ό Υπουργός συνιστςί συμβουλευιικήν έπιτροΓτήν άποτελουμένην έκ ιών ύπ* αύτοϋδιοριζομένων μελών καΐπροεδρευομένην Οπό προσώπου έχοντος νομικήν κατάρτησιν υποδεικνυομένου Οπό τοΰ Υπουργού προς έξακρίβωσιν των πραγμαιικών γεγονότων έκαστης περιπτώσεως καΐ ϋποβολήν προς αυτόν τού πορίσματος της υπό της επιτροπής γενομένης έρευνης". ("

(4)The Minister decides on any matter arising with regard to the exemption of conscripts on the basis of sub-section

(3). For this purpose the Minister sets up an advisory com­ mittee composed of members appointed byhim and presided over by a person legally qualified indicated by the Minister for theascertainment of the true facts of each case and the submission tohim ofthefindingsof the investigation carried out by the committee"). By section

(2)(d) of Law No. 33 of 1976 subsection

(4)was amended by the addition of a proviso that reads :"Νοείται δτι πάσα ούτω συσταθείσα συμβουλευτική επι­ τροπή θα προβαίνη Λς έξαχρίβωσιν των πραγματικών γεγονότων έκαστης περιπτώσεως παραπεμπόμενης είςαυτήν ύπό τοϋ Υπουργού καΐ είς Οποβολήν προς αυτόν τοϋ πορίσματος της ύπ* αύτης γενομένης έρευνης k\tσχέσει προς παν θέμα έπϊ τοΰ οποίου 6 Υπουργός αποφασίζει δυνάμει οϊασδήποτε διατάξεως τοΰ παρόνιος Νόμου, ή οίασδήποτε αποφάσεως τοϋ Υπουργικού Συμβουλίου εκδοθείσης ή εκδιδομένης, ή οίωνδήποτε Κανονισμών εκδοθέντων ή έκδιδομένων έπϊ τη βάσει τοΰ παρόντος Νόμου". ("Provided that every advisory committee set up shall verify the true facts of every case referred to it by the Minister and shall submit to him thereafter its findings 863 StyllanMes J. loamudes v. Republic

(1983)emerging from the inquiry into every subject entrusted to theMinister for decisionunder anyprovision of thepresent law,orbyvirtueofanydecisionoftheCouncilofMinisters, issued or to beissued, orunder any regulations issued or to be issued under the present law"). 5 A true proviso is one limiting or qualifying what precedes it· A proviso excepts out of a previous enacting part of a statute somethingwhich but for theprovisowould havebeenwithin the enacting part - (Mullins v. Surrey Treasurer, [1880] 5 Q.B.D. 170, 173). The effect of an excepting or qualifying proviso, 10 according to the ordinary rulesofconstruction, istoexceptout of the proceeding portion of the enactment, or to qualify something enacted therein, which but for the proviso would have been within it; and such a proviso cannot be construed asenlarging thescopeofan enactment whenitcan befairly and 15 properly construed without attributing to itthat effect - (Duncan v. Dixon, [1890] 44 Ch.D.211, 215; Toronto Corporation v. Attorney-General of Canada, [1946] A.C. 32, 37). However, while in many cases that is the function of a proviso, it is the substanceand content of theenactment, not itsform, which has 20 tobeconsidered,andthatwhichisexpressedtobeaprovisomay itself add to and not merely limit or qualify that which precedes it -(Rhondda U.D.C. v. Taff Vale Railway Co.,[1909]A.C.253, 258 H.L.; Commissioner of Stamp Duties v. Atwill, [1973] 1 All E.R. 576, 579, per Viscount Dilhorne). 25 In the present case the addition made by the enactment of 1976isframed as a proviso upon theprecedingpart of thesubsection but it is also true that though in form of a proviso, it is in substance a fresh enactment, adding to and not merely qualifying that which was before. The Minister is invested with power to decide on any matter that springs or arises with regard to exemption from service on the basis of subsection

(3). For that purpose the Minister establishes an Advisory Committee for theascertainment of the true facts of each case and the submission of the conclusions 35 thereof to the Minister. The"proviso", however, is differently worded and whereas the first part refers specifically to the exemptions under subsection

(3)of section 4, the proviso introduced in 1976refers to allother casesunder theLawand the regulationseitherwithinthepoweroftheMinisterortheCouncil 40 of Ministers. 864 30 3 C.L.R. Republic v. Ioannides Styllanides J. In construing this part, wehave to consider the section as a wholebut alsothe scopeofthenewenactment and theintention ofthemaker asit emanatesfrom thehistory of theLawand the language of its enacting part. 5 Havingconsidered thissection asawhole,the languageofthe first part thereof and the particular proviso, weare of theview that this "proviso" does no more than extend the competence of theAdvisory Committee incases other than thoserelating to subsection

(3). TheMinisterhastorefer anymatter inrelation 10 to subsection

(3)to theAdvisory Committee but hehasno duty torefer tothisconsultativebody theascertainment offacts inall other categories enumerated therein. The Minister has a discretiontorefer totheAdvisory Committeefor theascertainment of the true facts of other cases. A comparison of the language 15 ofthetwopartsofthesection leadstotheinescapableconclusion that the facts of cases falling within subsection

(3)have to be ascertained by the Committee but the ascertainment of facts in all other cases has to be made by the Committee if they are referred to it by the Minister. 20 In the present case, which is outside the ambit of subsection

(3),theMinisterhadadiscretionwhethertorefer itfor ascertainment of the true facts to the advisory Committee or not. The facts were set out in the application of 27.12.78 and in the "Responsible Statement" of thefinancial position and earnings 25 of the parental family of the respondent. The report of the Commander of the Force contained no additional facts. The Minister determined the application upon the factual situation placed before him by the respondent himself. No doubt the Minister in his discretion may, if he does not 30 intend to act on thefacts presented to him, either refer thecase to the Advisory. Committee for the ascertainment of the true situation.or he may arrive at the true facts in any other wayhe ,.may deem fit. It is obvious that in the circumstances of this case the Minister felt that there wasno need to proceed further 35 withtheascertainment ofthefactual situation or the verification thereof, and exercised his discretion accordingly. The Minister, having regard to the facts set out in the documents submitted by the respondent, dismissed the application. Even if it isassumed that he relied on opinion expressed by the 865 Stylianides J. Republic v. Ioannides

(1983)Commander of the Force-something which cannot be deduced from the material before the Court - that the grounds relied upon by therespondent did notconstitutespecial circumstances, yet this would not vitiate the subjudice decision. Theultimate decision was his andhedismissed theapplication which hecould 5 in law do. For the above reasons this appeal is allowed with no order as to costs. PIKIS J.: The interpretation of s.4

(4)of the NationalGuard Laws 1964 - 1981 and that of its two provisos, as well as their 10 application to thefacts of the case, are the subjects upon which attentionmustbefocused inordertodecidethisappeal. Section 4 inits original state,provided for exemption from theNational Guard of certaincategories of citizens. Thelaw was repeatedly amended. Of direct relevance are the amendments introduced 15 by s.2 of Law 14/66 and s.2(d) of Law 33/76. By theseamend­ ments the law was fledged in its present form, embodied in s.4

(4)and the two provisos thereto. It provided machinery for the examination of applications for exemption. Responsibility for decision, whether an applicant was entitled to exemption, 20 rested with the Minister. Also, he was invested with power to resolveany mattersarising inconnectionwith anapplication for exemption (έπϊ παντός θέματα? αναφυομένου). This power was not absolute but subject to an important qualification: By thefirst proviso to s.4

(4)theMinister was required to set up 25 an advisory committeetobepresided over by a legally qualified chairman for theverification of thetruefacts of each case, to be incorporated in a submission to the Minister. The crucial issue in these proceedings is the construction of the word "αναφυομένου" in the context of s.4

(4)of the 30 law. Literally the word connotes something springing-up and in common parlance, a matter arising. Something in relation toafact arises whenever itsexistence,significance orimplications are in issue. Therefore, a matter arises whenever need calls for its ascertainment or ponderation. As to the imperative 35 duty of the Minister to set up the aforementioned fact-finding body, there is nodoubt. Theproviso is cast in that perspective and the word συνιστά (constitutes or sets up), rules out every doubt. To my mind, equally clear is the duty of the 866 3 C.L.R. Republic v. Ioannides Plkis J. Minister to refer to this consultative body the ascertainment and assessment of every fact that must be ascertained or assessed in relation to the exercise of the powers of the Minister under s.4

(4). Reading the two together, i.e. s.4

(4)and its first proviso, 5 the inescapable conclusion is that the Minister is under a duty to refer to the advisory committee every factual matter, the ascertainment or assessment of which is necessary for the exer­ cise of the Ministerial power. Where the Minister accepts the facts relied upon in the application, nothing factual arises for 10 determination. All the Minister has to do, is to exercise his discretion in relation to the accepted facts. But whenever need arises for their ascertainment or assessment, he is dutybound to refer, inthefirst place,thefactual issuetotheadvisory committee for its findings, notwithstanding the fact that they are not 15 binding upon him. The interpretation of the second proviso was the subject of controversy. Conflicting submissions were made with regard to its aims and accomplishments. To my comprehension it presents no special difficulties, either respecting its interpretation 20 or its objects. It reads: 25 30 "Νοείται 6τι πάοα ούτω συσταθείσα συμβουλευτική επι­ τροπή 6ά προβαίνη eis έξακρίβωσιν των πραγματικών γεγονάιων εκάστη? περνητώσεω? παραπεμπόμενη? εΐ?αυτήν ύπό τοϋ 'Υπουργού καΐ ε!$ ύποβολήν προ? αυτόντοϋπορίσματο? τη? υπ' αύτη? γενομένη? έρεύνη? εν σχέσει προ?παν ϋέμα έπϊ τοϋ οποίου ό Υπουργό? αποφασίζειδυνάμειοίασδήποιε διατάξεως τοΰ παρόντα? Νόμου, ή οιασδήποτε άποφάσεω? τοϋ Υπουργικού Συμβουλίου έκδοθείση? ή εκδιδομένη?, ή οίωνδήποτε Κανονισμών εκδοθέντων ή έκδιδομένων έπϊ τη βάσει τού παρόντο? Νόμου". English Translation: 35 "Provided that every advisory committee set up shall verify the truefacts of every case referred to it by the Minister and shall submit to him thereafter its findings emerging from the inquiry into every subject entrusted to the Minister for decision under any provision of the present law, or by virtue of any decision of the Council of Ministers, issued or to be issued, or under any regulations issued or to be issued under the present law." 867 Pikts J. Republic v. Ioaontdes

(1983)Obviously the second proviso did not modify the duty of the Minister to refer to thefact-finding body theascertainment and assessment of facts arising inconnectionwith an application for exemption. The proviso clarified the duties of the advisory committee firstly, and expanded the duty of the Minister to 5 refer to the committee the ascertainment of factual matters relevant tohisdiscretion,secondly. As Mr.Cleridesmentioned, it is clear on authority that a proviso may not only qualify the provisions of a section of the law that it accompanies,but may, depending on its provisions, operate in its own right as a sub· 10 stantive enactment - See, Halsbury's Laws of England, 3rd ed., Vol. 36, para.604 (p.399). This was the case here. By authority to this proviso, the Minister was required to refer to an advisory committee set up under the provisions of the first proviso to s.4

(4), not only factual issues connected with appli- 15 cations for exemption under s.4, but also in respect of every other matter entrusted for decision to the Minister, including applications under s.9 of the law, for exemption on grounds of special circumstances. The ascertainment and assessment of facts relevant to thedeterminationof an application for exemp- 20 tion for special circumstances, whenever arising in the sense of s.4

(4), as earlier explained, has to be referred by the Minister to the advisory committee. The provisions of s.4

(4)and its proviso, were misapplied in this case resulting in the abortive exercise of the powers vested 25 by the Minister, as the learned trial Judge found. My reasons follow. Theapplicant applied for exemption from theNational Guard for special circumstances. The facts relevant to these circum­ stances were specified in his application and in an authentic 30 statement (υπεύθυνο? δήλωοι?), purporting to verify in a solemn manner the facts relied upon for exemption. The Minister had two options. He could either accept those facts and determine the application upon that factual premise or, in case ofdoubtastoany suchfacts ortheirimportandassessment, 35 he should refer the issue to the advisory committee. He did neither. He relied on the evaluation of the factual allegations of theapplicantmadeby theCommanderof theNational Guard and, guided by that assessment, he dismissed the apphcation. 868 3 CX.R. Republic τ. Ioannides Pikis J. ι The Commander of the National Guard, it is clear from his submission totheMinister,made,as it appears tome,a detailed assessment of the personal circumstances of the applicant and his parental family and drew conclusions therefrom. The 5 purported evaluation of the factual allegations contained in the application of the respondent, was made without authority in law and inabuse of thepowers of theadvisory committee. As such, it ought to have been ignored by the Minister. Reliance in these circumstances upon an improper evaluation of the facts 10 relevant to theapplication for exemption, rendered theexercise of his discretion defective and vitiated thedecisionitself. Iam, therefore, in agreement with the learned trial Judge that the decision must be annulled. Therefore, I would dismiss the appeal. 15 Appealallowed by majority. 869