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(1984)1984 April 12 [A. Loizou, SAWIDES, PIKIS, JJ.] ANDREAS DEMETRT KARANIKK1, Appellant, THE POLICE, Respondents. (Criminal Appeal No. 4496). Constitutional Law—Marriage—Article 22 of the Constitution— "Law of the Republic " in Article 22.2(
  1. b)and (
  2. c)of the Constitution—Does not exclude the Civil Marriage Law, Cap. 279 which pre-existed the Constitution—Because such a law isa validLaw of the Republicunder Article 188of the Constitution 5 and by virtue of section 29
(1)(Z>) of the Courts of Justice Law, I960 (Law 14/60). In 1968, the appellant who belonged to the Greek Orthodox Church, contracted a civil marriage with a witness of Jehovah, under the provisions of the Civil Marriage Law, Cap.
  1. In 1981 hewent through an ecclesiastical marriage with a woman of the Greek-Orthodox faith; and he was, on these facts, prosecuted and convicted for bigamy. 10 Upon appeal against conviction counsel for the appellant contended that the civil marriage which took place in 1968, 15 wasvoid as in order to gothrough a civil marriage in accordance with Article 22.2(c)* of the Constitution, such marriage had to be performed only under the provisions of a Law of the Republic which the House of Representatives would make after the coming into operation of the Constitution; that such a 20 Law has never been enacted by the House of Representatives and that the Marriage Law, Cap. 279 was in substance repealed by the said Constitutional provision and could not be retained in force by the transitional provisions of Article 188 which * Article 22 is quoted in full at pp. 147-148 post. 144 2 C.L.R. Karanikki \. Police are subject to the provisions of the Constitution, including those of Article
  2. 5 10 15 20 25 Held,per A. Loizou J., SavvidesJ. concurring, that the argument that only under a Law of the Republic which the House of Representatives would make a marriage could only validly be gone through, cannot stand as for all intents and purposes the Marriage Law, Cap. 279, with all its subsequent amendments, is a valid Law of the Republic under Article 188of theConslitution, by virtue of section 29(l)(b) of Law 14/60, adopted and treated as such by the House of Representatives: accordingly the appeal must fail. Per Pikis. J.y that, in view of Article 188 of the Constitution. reference in Article 22.2(c) of the Constitution to a law of the House of Representatives was not meant to cast the Civil Marriage Law, Cap. 279 into oblivion but designed to indicate the legislative body of the Republic with competence to legislate on the regulation of marriages between Greek-Orthodox and members of other religions, other than members of the Turkish Community. Cases referred to: . Police x.-Coiistuntinou, 18 C.L.R. 84; Chrt'stodoulou v. Republic, 1 R.S.C.C. I: Loizides and Others v. Republic, 4 R.S.C.C. 107; Attorney-General of the Repttblic v. Afatnis, 1 R.S.C.C. 212; Aspris v. Republic, 2 R.S.C.C. 57; Michael v. Malkiel
(1976)1 C.L.R. 272 at p. 275. 30 35 Appeal against conviction. Appeal against conviction by Andreas Demetri Karanikki who was convicted on the 16th January, 1984 at the District Court of Famagusta (Criminal Case No. 428/83) on one count of the offence of bigamy contraiy to section 179 of the Criminal Code, Cap. 154 and was sentenced by G. Nicolaou, D.J. to six months' imprisonment. A. Poetis, for the appellant. A.M. Angelides, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. J45 Karanikkis \. Police (198-4) The following judgments were read. A. Luizou J.: The appellant was found guilty and sentenced to six months' imprisonment on a charge of bigamy contrary to section 179of the Criminal Code, a section in respect of which it was held in the cate of the Police v. Manoli Constaniinou, 5 18C.L.R., p. 84,that except for certain express provisions which this section contains, same is to be construed in the same way as section 57 of the Offences Against the Person Act 1861. notwithstanding the difference in wording between the two provisions. 10 The particulars of the offence were that the appellant on the 12th September. 1982,at Paralimni, in the district of Famagusta, being the husband of Paraskevou Nicou Christou, of Xylophagou and during the life- time of his said wife,married Eleni GeorghioLi Kamilari, of Paralimni. The facts of the case as 15 found by the learned trial Judge arc not in dispute. On the 18th May. 1968,the appellant whobelongstotheGreek Orthodox Church, married under the provisions of the Marriage Law, Cap. 279, Paraskevou Nicou Christou, who had since 1962 renounced the Greek Orthodox Church and became a 20 Witness of Jehovah. They did go through this civil ceremony of marriage as the provisions of Article 111 of the Constitution were applicable only lo one of the parties to the marriage, namely, the appellant, and the other party was not a member of the Turkish community (see Article 22.2(
  1. c)of the Consti- 25 tution). Thereafter, they lived together and there weie two issues of the said marriage. As a result, however, of certain friction between them, the appellant left his family in May 1980. On the 29th October, 1981, the appellant applied to the proper Authority of the Greek Orthodox Church and secured 30 a Certificate of Freedom for the purpose of marrying Eleni Georghiou Kamilari from Paralimni. He did not disclose the existence of his previous civil marriage thiough which he had gone in May 1968 and which had not and still has not been dissolved. On the 12lh September, 1982, having followed all the necessary formalities there took place in the Church of St. John at Paralimni a wedding ceremony between the appellant and 146 35 2 C.i . i i . 5 Kuninikki ) . Polite Λ. Loi/ou .1. the ...'.id Eleni Ccorghiou Kamilari. in ixco.dunce with the liles of the G eek Orthodox Chu ch. On the i5ih September. 1983, Paraskev/ou Nicou Christou teported lo the Police that the appellant had ma'tied for a second lime and the hive ,tig?.tion~. iUi ted On the 7th October. 19-X2. in a voluntaiy statement made to the Police, which has been produced as an exhibit, the appel­ lant claimed that Pa-'askcvou Nicou Chiistou was never a Witness of Jchova and that before ho vent through the ccclesiaJO rtical wedding with Eleni Gcorghioa Kamila'i. he sought the advice of Λ Police Sergeant. .elaHve of his. whether a divorce had to be obtained befo.e he went through the ιnamage and he was assiiicd by that person that there was no such a necessity av his ma-viagc to Paraskevou was void as a marriage between 15 two Christian Orthodox G.ecks. These allegations were not accepted by tt\c trial Couil which accepted in thn .aspect the ev'idence of Paraskevou Nicou ChikLou to the effect that she was ΗWilne/; of Jehovah and the appellant knew \c.y well that fact, hence they went thiough a civil maniage. 20 25 30 35 it was the ca-e before the liial Judge and it was on this onl> gOiind that the ca.e has been argued befo e us that the dvil maiii'ige which took place on the 18th May. 1968, was void iv in outer to go through a civil marriage in accoidance with A'tide 22.2(
  2. c)of the Constitution. ;uch ma·Ί iage had to be pcrfolined only uitdc' the provision', of a Law of the Republic 1 which the Hoase of Representative :would makeaftei thecoming into operation of the Constitution: that ,uch a Law Juu neve.been enacted by the House of Representatives and that the Marriage Law·, Cap. 279 was in substance lepealcd by the said Constifalional p.-oviJon and could not be ietained in force by the t.ansitiona! provisions of Article 188 which are subject to the provisions of the Constitution,including thore of Article 22. A.tide 22.1. 22.2 (a), (
  3. b)and (c| of the Constitution provide» as follows:"22.1 Any person reaching nubile age is fiee to marry and to found a family acco.ding to the law ιelating to mairiage, applicable to such pe;son under the provisions of this Constitution. 147 Λ. 1-oizou J. 2. Karanikki \. Police
(1984)The provisions of paragraph 1 of this Article shall, in the following cases, be applied as follows: (
  1. a)if the law relating to marriage applicable to the parties as provided under Article 111 is not the same, the parties may elect to have their marriage governed by the law applicable toeither of themunder such Article; 5 (
  2. b)if the provisions of Article 111 are not applicable to any of ihe parlies to the marriage and neither of such parties is a member of the TurkishCommunity, the marriage shall begoverned by a law of the Republic 10 which the House of Representatives shall make and which shall not contain any restrictions other than those relating to age. health, proximity of relationship and prohibition of polygamy; (
  3. c)if the provisions of Article l i l are applicable only 15 to one of the parties to the marriage and the other party is not a member of the Turkish Community, the marriage shall be governed by the law of the Republic as in sub-paragraph (
  4. b)of ihis paragraph provided: Provided that the parties may elect to have their marriage governed by the law applicable, under Article 111, to one of such parties in so far as such law allows such marriage". By virtue of Article 188.1 of the Constitution laws otherwise 25 valid were saved and continued to be in force on the date of the coming into operation of the Constitution under and sub­ ject to the provisions of the said Article and to the extent to which these were not contrary to the provisions of theConstitu­ tion (see Miltiades Christodoulou and The Republic, 1 R.S.C.C. 30 p. 1; Loizides Others and The Republic, 1 R.S.C.C. p. 107: TheAttorney-General of theRepublic and Andreas Costa Afamis, 1 R.S.C.C. p. 212; Aspris and The Republic,4 R.S.C.C. p. 57). The Marriage Law, Cap. 279 was one of the laws so saved under Article 188 of the Constitution and further adopted by 35 the House of Representatives as a Law of the Republic by virtue of section 29(l)(
  5. b)of the Courts of Justice Law 1960, a Law passed by the House of Representatives and providing for the application of the Laws saved by Article 188.1 of the Consti148 20 2 C.L.R. Karanikki v. Police Λ. Loizou J. tution which include Cap. 279 "subject to the conditions provided therein save in so far as other provision has been or shall be made by a Law made or becoming applicable under the Constitution". See Michael v. Malkiel
(1976)1 C.L.R. 5 p. 272 at p. 275). Furthermoreunder section 29
(2)(
  1. b)the High Court in exercise/of the jurisdiction confened by paragraph (
  2. b)of section 19 shall apply the Law relating to MatrimonialCauses which was applied by the Supreme Court of Cyprus on the day preceding Independence Day, as may be modified by any Law 10 made under the Constitution. Every civil marriage that has been gone through in the Republic was celebrated in accordance with its provisions as being the law prescribed by the aforesaid provisions of the Constitution. Furthermore it was so treated as being alive 15 and that it continued to be in force in the Republic, and rightly so, by the House of Representative, by the enactment of four amending laws, namely The Marriage (Amendment) Law of 1962, 1966, 1969 and 1980 (Nos. 4/1962, 61/1966, 79/1969 and 2/1980). Characteristically it may be pointed out that the 20 amending Law of 1962 and mutatis mutandis all subsequent amending laws, reads as follows:"A LAW TO AMEND THE MARRIAGE LAW: The House of Representatives enacts as follows: 25 1. This Law may be cited as the Marriage (Amendment) Law, 1962, and shall be read as one with the Marriage Law (hereinafter referred to as 'the principal Law')". It then proceeds to effect the intended amendments to which Γneed not refer. 30 35 The argument, therefore, that only under a Law of the Republic which the House of Representatives would make a marri­ age could only validly be gone through, cannot stand as for all intents and purposes the Marriage Law, Cap. 279, with all its subsequent amendments, is a valid Law of the Republic under Article 188 of the Constitution, by virtue of section 29(l)(
  3. b)of Law 14/60, adopted and treated as such by the House of Representatives. For all the above reasons, I find the approach of the learned trial Judge on this issue to be a correct one and the conviction 149 \. f.oi/.ou .1. K:iranikki v. INilii-c (l*MM) o{~ the appellant duly warranted in law and under the Constif/tion and therefore this appeal : hoaid be di;mi:t.ed. SAWIDI-.S J.: I had the opportunity of reading in advance thejudgment of my brother Judge Loizou. J., and Iam in agree­ ment with the conclusions readied by him and also as to the 5 late of this appeal and I have nothing useful to add. PIKIS J.: The appeal tu.ns exclusively on the interpolation . of the p.ovisions of Article 22.2(
  4. c)of the Constitution, read in conjunction vriih the ρ eccdmg p a a g ;.ph of the same a.tide. Such inte.piclation most be taken in order to ic:oive whether m the Ma '. iage L;uv CA^. 279. providing ϊο<' and regulating civil marriage:;, enacted in the day:; of colonial rule, survived the introduction of the Constitution. Article IXS.l of the Consti­ tution saved lav.*:- in fo.ee before the inaugu-ation of the Republic. unless provision to the contraiy was made in the 15 Constitution. The applicability of the provisions oi this uiticie of the Constitution is madeexpressly dependent on the remaining provhions of the Constitution, a fact signified by the word;*. introducing this article, namely. "Subject to the provisions of the Constitution". Determination of the question is essential 20 to pronounce on the validity of the conviction of the appellant for higamy. The fact:, that gr.ve .ice to the conviction of the appellant are brieny the following: The appellant. ;•. G.eckOithodox. contiacted, in 1968, a civil marriage with a witness οΐ Jechova. As they belonged. 25 to diGe cnt ldigious group·:, they availed themselves of the pro­ visions of Cap. 279. Thereafter, the appellant lived with his "'wife" for a number of yeais and two children weie bom to them. When iclations between them deteriorated, appellant felt fiCC to many again, uiv.cstia'ned by the ties c.cated by the 30 marriage solemnized under the provisions of Cap. 279. So. he went through an ecclesiastical marriage with a woman of the Greek-Orthodox faith. On these facts, he was p,osecuted and convicted for bigamy. His conviction .ests on the base that His first marriage wai> valid and his Lccond bigamous. 35 Counsel for the appellant argued befo.e us. as he had done before the learned trial Judge, that Article 22.2(
  5. c)specifically 150 2 C.L.R. Karanikki v. Police Pikis .).. envisaged the enactment of a law by the House of Representatives for the regulation of acivil marriage and matters incidental thereto, between Greek-Cypriots, Cypriote members of the Orthodox Church and, non members of the Turkish community. 5 belonging to a different religion. In consequence, the Marriage Law was rendered obsolete. It war,not saved by the provisions of Article 188.1 because it was irreconcilable, in fact inconsistent with the provisions of Article 22.2(
  6. c)of the Constitution. Nicolaou, D.J., dismissed the above submission as untenable. 10 Construing the provisions of Article 22.2(b), made applicable by the provisions of the succeeding paragraph (c), he held that reference to a law of the House of Representatives was not meant to cast Cap. 279 into oblivion but designed to indicate the legislative body of the Republic with competence to legislate 15 on the regulation of marriages between Greek-Orthodox and members of other religions, other than members of the Turkish community. I am of opinion this is a sound interpretation of Article 22.2(
  7. c)on a consideration of itsobjects and the constitutional scheme to save existing legislation and ensure legal 20 continuity! Although it must be said that on a literal reading of the provisions of Article 22.2(c), the construction placed upon it by counsel for the appellant is neither unreasonable nor an impossible one. Below, I shall explain in more detail my reasons for agieeing with the interpretation favoured by 25 the trial Court. They are the following: 30 i5
(1)In enacting Article 188, the makers of the Constitution manifested unequivocally their intention to ensure legal continuity, by p.eseiving legislation existing when the Constitution was introduced. It extended not only to legislation compatible with the express provisions of the Constitution, but eveiy piece of legislation that could be saved by the powers vested in the Court to streamline legislation along the dictates and patten of the Constitution. It is, therefore, improbable they intended to exclude legislation such asCap. 279,perfectly rccondlable with the provisions of the Constitution.
(2)The application of many provisions of the Constitution necessitated either adjustment by judirial intervention under Article 188.1, or amendment of legislation. Yet 151 Pikis J. kurumkki \. Police
(1984)the constitutional legislator did not deem appropriate to provide for the enactment of a law by the legislative authorities of the Republic. I shall mention but two of the Articles of the Consti­ tution that necessitated sweeping changes in the Criminal Code—Cap. ϊ 54 and, the Criminal Procedure Law, notably. Article 11 and Article 12. Nevertheless, the enactment of a new lav.·was not postulated for the imple­ mentation of the provisions of the Constitution. 5 (}) Article 87(c) conferred legisiativc power to Communal 10 Chambers in relation to matters a personal status. This article of the Constitution does not, in terms, restrict the competence of legislative Chambers to cases where both parties, in the case of marriage, belong to the same community. Therefore, had it not been for the provi- 15 sions of Article 22.2(c), legislative authority might be claimed by a Communal Chamber. To implement the intention of the makers of the Constitution to exclude regulation of matters bearing on the marriage, a matter of personal status, between persons belonging to diiTerent 20 religions (other than members of the Turkish community) it was necessary to insert a specific provision in the Constitution to that end. This was accomplished by Article 22.2(c). Admittedly, constitutional intent in this area, could have been expressed in clearer language. 25 The language used, though lacking in clarity, does not obscure orhide the intentionof theconstitutional makers, correctly identified by the trial Court. For the reasons above given, and in agreement with Loizou J., 1 direct that the appeal be dismissed. 30 A. Loizou J.: In the result, this appeal is dismissed. Appealdismissed. 152

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