volving moral turpitude and sentenced to imprisonment—His seat becomes vacant upon his conviction—No leave of the Supreme Court for the enforcement of the sentence of imprisonment is necessary—Articles 64(c), 71(c) and 83.2 of the Constitution. The respondent, a practising advocate, and a member of the House of Representatives, was convicted on the 30th August, 1983 by the Assize Court of Larnaca on two counts of forgery and on two counts of uttering a false document and was sentenced to one year's imprisonment on each of the four counts, the sentences to run concurrently.
view of the provisions of Articles 83, 71 and 64 of the Constitution, the question arose before the Assize Court whether the seat of the accused
the House of Representative became vacant upon his conviction or whether he was still considered as a Member of the House and leave of the Supreme Court for his imprisonment was required; and the Assize Court
the relevant warrant of commitment to prison, whereby the Divisional Police Commander of Larnaca and all other Police Officers
Cyprus were commanded to take the respondent and comey him to the prison at Nicosia and there deliver him to the officer
charge thereof
serted the words "subject to the provisions of the Constitution". Hence this application by the Attorney-General of the Republic for: 25 "(I) A decision that the conviction of the respondent Member 251 Attorney-General v. Georgbiou
case where the Supreme Court decides that the said conviction did not have as a result the loss of the representative capacity of the respondent, an applicalion is submitted, for leave for the execution of the sentence of imprisonment which wasimposed by the Assize Court as 15 regards the said conviction." Held,Triantafyllides, P., Loris and Stylianides, JJ. dissenting, that since the respondent has been convicted of offences
volving moral turpitude hisseat has become vacant upon conviction andconsequently no question of leaveofthisCourtunderArticle 20 83.2 of the Constitution for his imprisonment is necessary. Per Pikis, J.:
my judgment, the convictions resulted
loss of office. Theaccusedceasedto bea Representative. Thatbeingthecase, jurisdiction to enforce the sentence of imprisonment under 25 Article 83.2, cannot beinvoked. Wehave no discretion
Ihe matter. The law must take its course and, the warrant of imprisonment must be executed. Obviously we had to rule on our amenity to deal with the application for theenforcement ofthe sentence ofimprisonment. 30 As we are of opinion and so find and declare that consequent upon thejudgment ofthe Larnaca Assize Court the accused forfeited his seat as a Representative, we have no jurisdiction to exercise. Thesentence ofimprisonment isenforceable ipsojure and the warrant of imprisonment must be executed. This 35 finding and declaration putsan endtotheproceedingsbeforeus.
myjudgment the
escapable conclusion
the light of the 252 L.R. Attorney-General v. Georghiou mandatory constitutional provisions is that upon conviction for an offence
volving dishonesty or moral turpitude, as
this case, the representative forfeits his seat. Therefore, I associate myself with Pikis, J., and for the reasons given
his judgment that we have no discretion to suspend the enforcement of the sentence of imprisonment. Along with A. Loizou, Malachtos and Pikis, JJ. I find and declare that the accused forfeited his seat as a representative upon conviction by the Larnaca Assize Court. Therefore, we have no discretion to suspend the enforcement of the sentence of imprisonment. This declaration puts an end to the proceedings before us.
ihe present case since there exists the element of the conviction of the respondent on four offences which undoubtedly
volve as of their nature dishonesty and moral turpitude and were
deed so described also by the Full Bench of this Court
itsjudgment, - and
view of the
terpretation I have given to the term "convicted of an offence", I have come to the conclusion that the seat of the respondent as a Representative has become vacant upon the occurence of his conviction and consequently no question of the leave of this Court under Article 83.2 of the Constitution for his imprisonment is necessary, once he has vacated his seat as a representative and I hereby make a declaration accordingly. Per Malachtos J.: There can be no doubt that the offences for which the respondent was convicted
voke dishonesty and moral turpitude. This was certified by this Court when granting leave for the prosecution of the respondent
the case of
Re Georghiou
the House of Representatives should be considered as vacated. It makes no difference that the respondent has filed an appeal against his conviction
the meantime. Hisprivilege for special treatment under Article 83.2 of the Constitution comes to an end and from that time onwards he should be treated like any 253 Attonic)-Oencral t . Gcurghiou (198-41 other citizen of the Republic who finds himself
the same situation. It follows from the above that the application under consi deration,
its present form, which is based on Article 83.2 of the Constitution,cannot be entertained as the seat of the person concerned became vacant upon his conviction by the competent Court. The net result of my decision is that the warrant of Commit ment to prison of the respendent ought to have been executed forthwith, immediately after it was signed. Order accordingly. Cases referred to:
re Georghiou
the Houseοΐ Represent atives. j5 20 L. Loucauk's, Deputy Attorney-General of the Republic with A. Papasavut.s, Senior Counsel of the Republic. for the applicant. ΛΛ Christoph'ules with Chr. Tnantajyllides. foi lire lespondent. Cur. ud\.vuli. TRiANTAi-YLLiDLb P.: The first judgment of theConn will be delivered by Pikis, J. PIKIS J.: With the leave of the Supieme Coutt given under the provisions of Article 83.2of the Constitution.* Geotghios Afxentiou Geoighiou, a member of the House of Repicstnt25 atives, a Representative for the Lainaca district, was prosecuted on twocounts of forgery andtwocounts of uttering thesame forged documents. The accused pleaded not guilty to the charges. After a long tiial the Assize Couit of Lainaca found the charges proven andrecorded a verdict of guilty, on 30th 30 August, 1983. As maybe surmised fiom the recoid of the Assize Comt produced before us,the coreofthefacts suppoi ting the convictions was thesame as thesummary of the facts for which leave was given to prosecute the Repiesentative. Very biiefly the case fotmd proven against the Representative, 35 was the following: The offences were committed
connection with the exercise See theRuling of 14thJanuary. 1983. /;/ Re CeontMou (1983> 2 C.L.R. I, 14 et seq. 255 I'fkis J. Atlorne>-General \. Gewryhiou
the United Kingdom. Notwithstanding assurances given to his client and her representative
Cyprus that the money had been deposited
her name and that steps were taken for permission to despatch it to the U.K., nothing had been done
that direction. To reassure her and her representative that till was
oider, the accused forged a deposit receipt of a commercial bank and made it to read that the monies collected on behalf of the client had been deposited
her name and, then. forged a second document that purported to issue from the Central Bank, authorising the transfer of the monies to the U.K. under the Exchange Control Laws. And all this, was accomplished
order to lend credence to his misrepresentations about the fate of the monies of his client. Meantime, the monies were
his possession, apparently put to uses of his own. Before the
stitution of criminal proceedings the money was refunded to the lawful owner, together with the
terest it would have attracted had it been deposited,
the first place,
the name of the client. Upon thetc facts, the Assize Court convicted him on two counts of forgery,
volving the forge;y of the afoiementioned documents, and on two counts of uttering, contrary to the relevant provisions of the Criminal Code, notably sections 331 and 335
connection with the forgery counts, and sections 20,331, 335and 337,relevant to the uttering counts.
commiting the aforementioned acts the accused was found to have been activated by an
tent to defraud his client. The Court sentenced the accused to concurrent terms of one year imprisonment. Conflicting submissions were made before the Assize Court as to the enforceability of the sentence. Mr. Loucaides subnutted that the convictions sealed the fate of his -cat
the House of Representatives. The Rep/esentatfve, it was submitted, forfeited his seat becaujc his convictions
volved dishonesty as well as moral tuipitude, entailing the vacancy of his seat
the House of Representatives under the provisions of Article 71(c) of the Constitution. Mr. Christofides for the accused, submitted the Assize Court had no jurisdiction to pronounce on the forfeiture of a parliamentary seat, but only the Supreme Court could,
appropriate circumstances, deliberate and rule on the matter.
a Ruling preceding the issue 256 2 C.L.R. Altorney-General v. Geoifthiou Pikis J. of a warrant of imprisonment, issued under the provisions of the Criminal Procedure Law, they expresred doubts as to their competence to pronotuice on the implications of the convictions upon the status of the accused as a Representative, and
clined 5 to the view that the issue was one for the Supreme Court. For this reason, they endorsed their warrant, otherwise directing the immediate imprisonment of the accused, with a jurat,
the following terms "Subject to the provisions of the Constitution". To my comprehension the jurat itself adds nothing 10 to the warrant, nor does it detract from its enforceability. All warrants of imprisonment must comply with the provisions of the Constitution. No one can go to prison contrary or
defiance to the provisions of the Constitution. If they thought they had no jurisdiction to issue a warrant of imprisonment, !5 they should have lefrained from issuing one. whereas, if they were of opinion that they should suspend it, pending a decision of the Supreme Couit. they should have attached appropriate conditions of suspension. Following the decision of the Assize Court, Mr. .Loucaides 20 treated the order of imprisonment as a live isstie and made an application before the Supreme Couit for a declaration that the conviction of the Representative entailed automatically loss of office and vacation of his seat. Having regard to the nature of the offences and facts giving rise thereto, a declaration along 25 these terms would obviate the need for leave for the imprisonment of a Representative under Article 83.2 of the Constitution.
the alternative, he prayed for the leave of the Supreme Court to enforce the warrant of imprisonment notwithstanding continuance
office as u Representative. 30 The application is based on the provisions of four articles of the Constitution, namely 64, 71, 83 and 149. It is, I must confess, difficult to seethe relevance of Article 149in the context of this application. Article 149 confers upon the Supiemc Court, as thevesteesof thepowersof the Supreme Constitutional 35 Court under Law 33/64, power to
terprete the Constitution
case of ambiguity. Far from acknowledging the existence of any ambiguities, Mr. Loucaides argued that the relevant provisions of the Constitution, namely those of Articles 71 and 64 pe.tinent to the vacation of the seat of a Representative 40 upon conviction for offences
volving dishonesty or moral 257 Pikis J. Attorney-General ν Gcnrglmiu
terpretation to suggest itself. As I read Article 149(b), assumption of jurisdiction thereunder for the resolution of a constitutional ambiguity, is only justified if decision is necessaty for the determination of a case tried by a lower Court or
the event of conflict between organs or authorities of the State, as to the effect of constitutional provisions or. conceivably, between a citizen and an organ of the State. Pro ceedings under Article 149 can only be entertained if there is a real ambiguity, that is, the meaning of a constitutional provi sion is prima facie susceptible to more than two
terpretations. The relevant rules of the Supreme Court* require leave of the Supreme Couit for
itiation of the proceedings and specific directions for the definition of the issue and its determination consequent upon leave. Needless to say, a case of ambiguity
the context of the Constitution can only be made out if the relevant constitutional provisions are, on the face of them, or
the context of the Constitution, equivocal as to what they import. A question of ambiguity does not arise whenever conflicting submissions are made as to the construction or
ter pretation of constitutional provisions, or where rival opinions are expressed as to the application of constitutional provisions
the given circumstances of a case. I shall concern myself no further with Article 149, substantively and procedurally irrelevant to the determination of the proceedings before us. The gravamen of the application for the Attoiney-General concerns the issue of a declaration by the Supreme Court that the Representative lost his seat as a result of his conviction, and that
consequence thereto, his imprisonment should follow automatically. The procedural basis for making such an appli cation was not clearly
dicated. The only provision of the Constitution cited
support of the submission, that we have substantive jurisdiction to make such a declaration, is Article 85, not cited
the application. Mr. Christofides for the accused, took a completely different view from that expressed by Mr. Loucaides as to the effect of Article 71(c) of the Consti tution and the implications of the conviction of the accused upon his status and occupation of his seat as a Representative. On a purposive
terpretation of the Constitution, the House Rule !5(2Xb) of the Supreme Constitutional Court Rules. 258 2 C.L.R. Attorney-General v. Georghiou Pikis J. of Representatives is the body competent to decide whether the seat of Representative Georghiou was vacated. This is not the only departure we were
vited to take from a literary
ter pretation of the provisions of Article 71(c). We weie
vited 5 to hold that "conviction" should be construed as meaning, conviction by a competent Court affirmed on appeal
case an appeal is filed, as
this case, against the verdict of the trial CouTt. Pendingsuch confirmation, theprisoner, if I understood correctly the submission, stands unconvicted and is at liberty 10 to move without hindrance
s'de and outside the House cf Representatives. He acknowledged however, provided 1comptehended rightly his address, that a grammatical construction of Articles 71(
paragraph (
25 Article 64 reads:"A person shall be qualified to be a candidate for election as a Representative if at thetimeof theelection that per-,οη(
to operation of this Constitution, convicted of an offence
volving dishonesty or moral turpitude or is not under any disqualification imposed by a competent Court for any electoral offence; 35 (d) is not suffering from a mental disease
capacitating such person from acting as a Represntative". 259 Pikis J. Attorney-General v. Georghiou
aid of the submission that the Court possesses jurisdiction to take cognizance of the present proceedings and grant an appropriate declaration, Mr. Christofides relied upon the provisions of Article 139 vestingjurisdiction
the Supreme Court to adjudicate finally "
connection with any matter relating 5 to anyconflict 01contest ofpower or competencearising between the House of Representatives and the Communal Chambers or anyone of them and between any organs of, or authorities
, the Republic". On the one hand, Article 139 can only be
voked
the context of a recourse specifically sanctioned 10 tinder rule 15
asmuch as the present proceedings were neither pursued nor sanctioned 15 under Article 139, we cannot notice or attempt to resolve any conflict between organs of the State. Further, no such conflict has been brought to our notice. All we have before us is a dispute between the parties to the proceedings, respecting the implications of the conviction of the accused upon his status 20 as a Representative and his liability to serve the prison sentence imposed by the trial Court. The submission that the House of Representatives has exclusive authority to adjudicate upon the fate of the parliamentary seat held by the accused, is an issue that merits consideration
proceedings under Article 83.2. 25 For, before assuming jurisdiction under the aforementioned article, we must first be satisfied that the accused is a Representative. JURISDICTION OF THE SUPREME COURT TO TAKE COGNIZANCE OF THE PROCEEDINGS: Nature of the Jurisdiction: The Constitution does not confer, by any of its provisions, directly or by necessary implication, unlimited jurisdiction upon the Supreme Court to resolve constitutional issues
dependently of the dispute of the patties or its context. What it does, is to 35 vest jurisdiction
the Supreme Court to resolve specific issues as
the case of Articles 139, 144 and 149. Heie again, the assumption of jurisdiction is not automatic but, as
dicated respecting Articles 139 and 149, it is subject to obtaining prior 260 30 2 C.L.R. Attorney-General v. Georghiou Pikis J. leave of the Supreme Court and dependent on compliance with conditions that may be imposed asto the definition ofthe issues
dispute. On the other hand, the proceduie for reference of constitutional issues to the Supreme Court essential for the 5 determination of a case*, has been rendered superfluous by the enactment of the Administration of Justice (Miscellaneous Provision) Law—33/64—See, The Attorney-General of the Republic v. Mustafa Ibrahim And Others, 1964 C.L.R. 195. Mere reference to the Supreme Court of an issue
volving the
ter10 pretation or application of constitutional provisions, does not empower us to assume jurisdiction. Reliance wasplaced by Mr. Loucaides upon the provisions of Article 85 empowering the Supreme Court to make,
appropriate circumstances, declarations about the composition of 15 the House of Representatives and the right of an elected Representative to hold a seat
the House. Fistly, the application is not based on Article 85 and no reference is made to it
the application. Secondly, Article 85 is not a procedural but a substantive constitutional enactment establishing the basis for 20 the resolution of disputed questions affecting validity of the candidature for election of preferred Representatives, as well as election petitions. The Election of Members of the House of Pvepresentatives Law—72/79, aims to regulate comprehensively matters under Article 85,
cluding the procedure to be 25 followed. Article 85 deals exclusively with the validity of elections and matters antecedent and consequent thereto. An electoral objection must be lodged before the Electoral Court established under the provisions of Law 72/79,within one month from the date of the election. I am disinclined to probe further 30 the provisions of Article 85, procedurally and substantively irrelevant to the proceedings
hand. Section 41 of the Courts of Justice Law vests jurisdiction
a Court exercising civil judisdiction, to make binding declarations of rights,-
dependently of any consequential relief. It reproduces the jurisdiction 35 acknowledged bythe common law totheCourtstomakebinding declarations of right
appropriate cases. It is a jurisdiction that is exercised with great circumspection and never as an alternative to the pursuit of a specific relief, where one is available. And then, subject always to observing strict * Article 144.1. 261 Pikis J. Attorne)-General v. Georghiou
tei alia, G. W. Stow And Others v. F. Houry And Others,24 C.L.R 206, Llc/u G. Protopapa v. Pavlts K. Djordjts And Others
passing for the issue does not pose for consideration. Under 5 s.41—Law 14/60—jurisdiction for making a declaratory judg ment does not vest
the Supreme Court but
Courts of first
stance, unless first
stancejurisdiction is specifically conferred on the Supreme Court. On the strength of the above analysis of the jurisdictional 10 aspect of the case, I am driven to the conclusion that the only basis upon which jurisdiction could be exeiciscd with legard to the fate of the convicted Repiesentative, is under Article 83.2 of the Constitution, provided his conviction did not result m the loss of his status as a Representative. The plain provisions 15 of Article 83 4 cleariy suggest that jurisdiction can only be assumed mιelation to the enforcement of an oidei of imprison ment, only wheTe the accused continues to be, after conviction, a Representative. It reads:"If the High Court refuses to giant leave foi the enforce- 20 ment of a sentence of imprisonment imposed on a Repre sentative by a competent Court, the enforcement of such sentence shall be postponed until he ceases to be a Representative" That theexercise of JUIlsdiction underAitide 83 2presupposes 25 the holding of office by the accused, is certainly warranted by the unambiguous provisions of Article 83.4 Also, it is supported by authority as well
Lefktos Chi Rodosthenous v. The Republic, 1961 C.L.R. 382, the Supreme Court refused to take cognizance of an application for leave to enforce a 30 sentence of imprisonment upon a Member of the House of Representatives, because it appealed that the accused cca'.ed to be a Representative after conviction. Jurisdiction under Article 83.2 could only be assumed
relation to an accused who did not forfeit his office as a result of his conviction. And 35 r as it appea ed on a pieview of the record of the trial Court that the conviction entailed loss of office, they declined juris diction and adjudged the Republic to pay costs for
stituting 262 I C.L.R. Attornev-Gtneral v. Georghiou Pikis J. unnccessaiy proceedings. The conviction^ of the fallen Repiesentative were for— (
stiuclivc m another icopect as well. It is open to the Supieme Couit toexamine for puiposes ofjuiicdiction the lecord 10 of the Court that imposed the sentence of. imprisonment
order to decide prima facie or finally on the implications of the conviction upon the position of a Member of the House of Representatives after conviction. Consequently, thefirstquestion iswhether wehavejurisdiction 15 to deal with the application befoie us. Decision depends on the implications of the conviction of the accused
the light of the provisions of Articles 71 and 64 of the Constitution. Mr. Loucaides submitted that the conviction of the accused brought about automatically forfeiture of his seat as a Repre20 sentathe. Assuming that to be the position, we have no jurisdiction OTany discietion for that matter to postpone oi suspend for any period the enforcement of the sentence of imprisonment. Mr. Chiistondes for the accused, submitted that the conviction of the accused by the A1-size Court,
dependently of the nature 25 or calibre of the offences, did not
volve forfeiture of the seat of the accused, for two leasons: Because— 30 35 (a) A conviction
the context of s.7! should be construed as a conviction confirmed by the Court of Appeal. •Short of such affirmation, no conviction should be deemed as having been lecorded. Consequently, the accused remains unconvicted for the puiposes of s.71, and any application to enforce the sentence' upon him is premature. He is,
his submission, an unconvicted Representative who retains, pending confirmation of the conviction on appeal, his position and the immunity conferred by Article 83.2. (b) Alternatively orsupplementary to theabove,heremains 263 Pikis J. Attorney-General v. Georghiou
the House 5 vacant.
support of the first submission made above, counsel cited the provisions of Article 66.2,requiring that a vacancy occurring
the Houseof Representatives, should befilledbya by-election to be held within 45 days. Tt cannot have been the
tention h) of the makers of the Constitution, he argued, to have envisaged the filling of vacancy
the House while an appeal was pending. A ludicrous situation would arise if a by-election was held
the meantime and subsequently the Representative was acquitted on appeal. The Court, should,
view of the provisions of 15 Article 66.2 and the need to sustain the efficacy of the right to appeal, give a teleological
terpretation to the provisions of Article 71.3,and construe the word "conviction" at meaning '*a conviction by a competent Court of first
stance sustained on appeal". The argument he:e presupposes
ability of the ?' judicial systemto dispose ofan appeal expeditiously and contemplation of such
ability by the makers of the Constitution.
support of his second submission above, he drew attention to the pattern of the Cyprus Constitution and the strict separation of the three powers of the State adhered to them— 25 the Executive, the Legislative and Judicial. Recognizing jurisdiction to the House of Representatives to decide upon matters relevant to the exclusion of a Member from office, is,he argued. consistent with the separateness of the legislative power and its autonomy. Moreover,
the case of Rodosthenousythe House 30 of Representatives, by an unpublished decision, proclaimed that power vested
the House to declare the seat of a convicted Representative vacant. Thereafter, they decided by a secret vote to expel Rodosthenous. A proper application of the doctrine of separation of powers 35 requires, each power should be supreme
its sphere, separate from the others,
stitutionally empowered to function without theconcurrence of theother powersoftheState. The autonomy of anyone of the branches of the State does not entail power 264 2 C.L.R. Attorncj-General \. Georghiou Pikis ,1. to assume all functions affecting the particular branch directly or
dnectly,
dependently of the nituie of the jurisdiction. Γη the same way as the competence and local jurisdiction of Courts subordinate to the Supreme Court may legitimately 5 be regulated by thelegislatuie and,m fact it is, so may a function of a judicial nature affecting the House of Repie;entatives be resolved by thejudicial power of the State Few would disagree that it is primarily a judicial function to deteimme whether a conviction emanates fiom a competent Couit and whethei the 10 offence
volves dishonesty o1* moral tuipitude.
Chokolmgo ν Attorney-Generalof Trinidad [1981] 1 All E.R. 244 (P.C), it was declaied th?t undei a constitutional system of separation of powe s, ,t is the function of the Judiciaiy to rnterp:etc the law and declare \U applicability to given cucumstanccs (see, 15 also, Re Racal CommunicationsLtd. [1980] 2 AH E.R 634 (HL) —the judgment of Lord Diplock
particular). THE
TERPRETATION OF THE CONSTITUTIONMEANING OF "CONVICTION"
ARTICLE 71: 20 Whodecides about theforfeiture oj aseat m the House of Representatives: Ths mteipietation of the woidmg of any enactment,and that
cludes the Constitution >sa mattei of law—Dyson Holdings Ltd ν Fox [1975J 3All E.R. 1030, Pearlman v. Harrow School [1979( I All E.R. 365 Aiguably, if it was not so, society would 25 be bedevilled by endless disputes about the effect of the law. The Constitution is no oidmaiy statute It is a basic source oi law and,as such, it is cast m a separate category.
Minister oj Home Affairsν Iisher[1979] 3All Ε R 21,the Privy Council subscribed to the view that the Constitution is a sm generis 30 document, the
terpretation of which is not governed by the ordinaiy rules of conduction of statutes, but should be
ter preted subject to the usages and background that led to its formulation oi parts of it. Brother Judges Hadjianastassiou, Loris,as well as myself, found the principles laid down
Fisher 35 salutary and equally applicable to the
terpretation of the Constitution of Cypius — see. Police v, Georgluades
terpretein Geotghiades, Aitides 64(
temational usage nor fashioned to the Constitution of any 265 Pikis J. Attorney-General >. Georghiou
Greece, under the 1975 Constitution, the forfeiture of a parliamentary seat upon loss of the necessary qualifications for office, isautomatic but
caseof dispute as to whethei the qualifications weie lost, the matter is resolved by a special Court set up under Article 100of the Constitution. But, as explained by Raikos,
his work on the Lessons of Constitutional Law. Part A, at p. 205, the decision of the Court is declaratory of what has ocuuired, and not
itself definitive of the situation.
England, conviction for a criminal offence does not
volve forfeituie of the seat of a Member of the House but may cause the Hou c c to expel the convicted Member. Expulsion docs not
itself
capacitate the Member from re-election—See. Halsbury's Laws of England. Vol. 34, para.
the House of Commons or any of its committees. It is worthy of notice that disqualification follows upon adjudication and not upon confirmation on appeal, notwithstanding the fact that disqualification ceases if, for any «eason, the adjudication is annulled—see, Halsbury's Laws of England, Vol. 34, para. 1105.
the United States of America the Constitution p.'ovides byvirtue ofArticle l
the House. By a series of piovisiou», the makers oi' the Cyprus Constitution evinced a clear
tention that malleis relevant to the composition of the House of Representatives should be rer-olved by competent Courts of the land. Questions partinent to the qualifications of a candidate and his right to sit
the House after an election, are "finally adjudicated by the Supreme Constitutional Court"
virtue of the provisions of Article 85. Whether a peison has the qualifications, envisaged by Article 64, to be a Representative, is a question exclusively amenable to thejurisdiction of the Court, if the Constitution
tended that competence to sit
the House be a matter of judicial deliberation, it is natural to p/esume that it was
tended to assign totheJudiciary all matters ielevant to the right of a person to occupy a seat
the House,
giving leave to prosecute the 266 2 C.L.R. Attorney-General v. Georghitm, Pikis J. accused
this case, we had opportunity to debate the structure of the Constitutionof Cyprus
this area and point out thatthe manifest
tention of the constitutional drafters was to leave matters affecting the composition of the House to the judicial 5 authoritiesof the State,removing such issues from thespectrum of politics—
Re Georghiou
any way forfeiture of the seat of a Representative to a declaration or proclamation of the House 10 of Representatives on the subject. On the contrary, they asso ciated theissueof forfeiture with theimplications of aconviction as reflected from the record of the Court of trial. 15 20 25 30 35 40 The Constitution does not tie forfeiture of a parliamentary seat to any declaration of theeffects of aconvictiqm. Forfeiture arises upon conviction, so it is laid down
Jf a dispute arises as to the effects of a conviction, the matter no doubt will be resolved by a competent Court of law. If the nature of the conviction imports disqualification, no onecan ignore it; eveiyone has a duty to notice it and implement it. And that
cludes all authorities of the State. This reading of the Constitution is perfectly warranted by the plain provisions of the Constitution. Far from evincing an
tentionto qualify the effect of the clear provisions of Article 71(c), the makers of theConstitutionreinforced theirintentionby other provisions of the Constitution. They contemplated conviction as oper ating similarly asa disqualification tosit
the House,orremain a Representative. The word "conviction" cannothave but the same meaning
Articles 64(c) and 71.
fact,
It is
corporated by reference to Article 64(c). If an issue arose whether a candidatein parli amentary elections became disqualified as a result of a conviction, all the Court would have to determine,would be to determine the effects of the conviction. On authority, as well, we arebound to holdthatuponconviction for an offence
voiving dishonesty or moral turpitude, disqualification follows automatically. Γη Rodosthenous the Court declined jurisdiction because it appeared that on consideration of the record of the trial Court, the convictions caused the forfeiture of the seat of the Representative. Therefore, no one had power under the law tosuspend theenfoicement of the sentenceof imprison ment. 'More lecently,
giving leave to prosecute the accused, 267 Pikis J. Attorney-General v. Georghiou
terms that leaveno doubt that conviction for offences of dishonesty and moral turpitude imports forfeiture of the seat of the Representative. These pronouncements were not madeparenthetically but formed part ' of the ratio decidenti of the case,
that reflection upon the 5 consequences of conviction was held to be a relevant consider ation to deciding whether togiveor withhold leavefor a prose cution. And as the offences for which leave was sought appeared to be offences
volving dishonesty and moral tur pitude, leave was, on account of that consideration,
ter alia, 10 granted. For withholding leave, might result
terfering with thecomposition of the Houseby allowing aRepresentative, who possibly committed offences, disqualifying him from seat
g, to occupy a seat
the House.
Re Georghiou
respect of the commission of offences which, if he is found guilty of them, would entail his losing his seat
the House of Representatives, the proper application of 20 Article 71 of the Constitution would be nullified if we refuse, without good justification, leave to prosecute the lespondent now and, thus, defer his prosecution until the expiiy of his term of office as a Member of theHouse of Representatives. 25 Ft seems,
deed, to me that this is one of those cases
which,
view of the provisions of Article 71 of the Constitution, it would, if all the other lelevant consider ations permit such a course, be
the public
terest to giant leavetoprosecutetheιespondent,because thegranting 30 ofsuchleavewould notserveonly thegeneral public
terest which requires that persons charged with criminal offences should be tried as soon as possible, but,also, theparticular public
terest
volved
not allowing somebody to con tinue to be a Member of the House of Representatives if 35 he has committed offences which deprive him of the right tocontinueto be a Member of the House of Represent atives". Malachtos, Loris and Stylianides, JJ., concurred with the judgment of the learned President, and subscribed to the view 40 268 2 C.L.R. Attorney-General r. Georghiou Pikis J. above expounded. A. Loizou, J., was of the same opinion. He said at p. 24: 5 JO "Finally and this is connected with the nature of the offences,, which
volve, as already stated, an element of dishonesty and moral turpitude,
the sense of Article 64(
volving dishonesty or moral turpitude the seat of the representative becomes vacant. This means that if the respondent is found guilty of them that would result
vacating his seat
the House of Representatives". Hadjianastassiou, J., and myself,
clined to the same view
separate judgments given
the same case. ]5 20 2g 30 35
the light of the above authoritative
terpretation of Article 71, I regard the matter settled by precedent as well. The cases of Rodosthenous and
Re Georghiou established another pro position of relevance to the present proceedings. It is this. The conviction envisaged by Article 71(c) is a conviction by a competent Court of first
stance. Even if the
terpretation of "conviction"
the context of Article 71(c) was free from authority, one would be driven to the same conclusion, both on a literal and purposive
terpretation of the relevant constitu tional provisions. The word "conviction" (καταδίκη), is a woid with a settled meaning
daily parlance and legal terminology. Whether used
the popular sense or as a term of art, it connotes the same thing, conviction by a competent Court^of law. Is there anything
the Constitution to
dicate an
tention that the word "conviction" should be read
any other sense? I a m of opinion the answer is definitely
the negative. Earlier it was explained that the word "conviction" cannot but have the same meaning undeT Articles 64 and 71. Should we suppose that the constitutional makers
tended persons convicted of offences
volving moral turpitude to be eligible as candidates foi the House of Representatives if their conviction was under appeal? The question has only to be asked for the answer to suggest itself. And the answer is,
my view, N o . To my mind the word "conviction" has such a clearly defined meaning that it would be arbitrary on my part, under any circumstances, to 269 Pikis J. Attorney-General v. Georghiou
Duport Steels Ltd. v. Sirs [1980]1 All E.R. 529,it was observed that the impartiality of theJudiciary, so essential for thecon tinuanceoftheruleoflaw, would bejeopardised ifJudges, under the guise of
terpretation, provide preferred amendments to 5 statutes
order to remedy anomalies that may arise from the application of the law, as expressed by its makers. Γη another caseit was emphasised thatanomalies as such,provide nojusti fication for theJudiciary todeviate from express provisions of a statute, except
the face of oveiwhelming
dications that the 10 wording of ihe statute defies the
tention of the legislator Stock v. Frank Jones{Tipton) Ltd. [1978] 1All E.R. 948. Nowhere
the Constitution is there any provision casting doubt on the use by the Constitution of the word "conviction"
its ordinary connotation. The word "con- 15 viction" is encounteredin other provisions of the Constitution,
its usual sense.
.2(a) "conviction" by acompe tent Court constitutes proper authorityfor this immediatere striction of liberty, the most fundamental right of man. Con viction for any offence, it is laid downin Article 12.2,isa barrier 20 to putting upon trial for thesame offence the person convicted. Throughout theConstitution,theword "conviction"andcogna te expressions, are used rjidistinguishably
one sense, that is conviction by a competent Court of law. The Constitution did not safeguard a right to appeal. Its 25 conferment and legulation were left to legislative discretion. Thelaws
foice at the time of theintroductionof the Consti tution, saved by Article 188.1,the Criminal CodeandCriminal Procedure Law
particular, refer to "conviction" as a con victionby acompetentCourtof law. Howcouldwethensuppo- 30 se that the makers of the Constitution used "conviction"
a sensewholly different from itsordinary meaningaidalientothe system of criminal law and procedure, the English system, the adoption of which they anticipatedby savingexisting legislation? Theanswer is,any such supposition would bearbitrary andcon- 35 trarytotheConstitution. An unqualifiedrightofappeal against conviction was conferred bystatute,notably s.25
the functioning of the parliamentary system from the ousting of a Representative and 270 2 C.L.R. Λttorne>-General v. Georghiou Pikis J. hisreinstatementupon asuccessful exercise of the right of appeal. Responsibility for remedying them does not lie with the Courts but elsewhere. On the other hand, one must not overlook the anomalies that would ceitainly occur if conviction did not entail 5 unseating. The Representative convicted, be it of the gravest .offence, would be at liberty to represent the public
side and outside the House of Representatives. That would be an ano maly as well, an anomaly the drafters of the Constitutioninten ded to rule out. And so they decreed. 10 The question of who decides whether a conviction results
loss of office, is easier to answer. The consequences of thecon viction are laid down
the Constitution. All organs of the Slate must noticethem. Γη case of dispute as to the consequen ces of conviction, a competent Court mustresolve the question. 15 Where a sentence of imprisonment is imposed, the trial Court must ponder the consequences of conviction
order to decide whether the sentence is immediately enforceable. The issue of a warrant of imprisonment is,
principle and on authority, a judicial act - R. v.ChichesterJustices [1982] IAH E.R. 1000, and R. v. Gateshead Justices [1981] I All E.R. 1027. 20 Also the Supreme Court on a motion under Article 83.2, must first decide on the implications of the conviction as a necessary prerequisite for the exercise of jurisdiction thereunder. If, as a result of a conviction, the accused ceased to be a Representa25 live, there is no discretion to suspend the sentence and, con sequently. no jurisdiction to exercise. Therefoie, we are required to determine whether the convict ion of the accused resulted
forfeiture of his seat
the House of Rep esentatives. Offence,
the context of Article 71. may 30 mean oneof two things. Theoffence of whichhewas convicted, as noticed by the statute and its attributes, or the offence as reflected by the facts of thecase and their
tiinsic nature. It is unnecessaiy to givea conclusive answer. For,on either view of the meaning of "offence", theconvictions entail both dishonesty 35 and moral turpitude. The identity between the offences and basic facts upon which leave to prosecute was granted and the offences and facts found proven by the trial Court, make further
quhy unnecessary.- Furthermore,
giving leave, we reflected upon thenatureof the offences and facts givingriseto them as a Pikis J. Attorney-General v. Georghiou
volved both dishonesty and moral turpitude. Examination of the judgment of the trial Court and the convictions recoided, confirms the above.
my judgment, the convictions resulted
loss of office. The accused ceased to be a Representative. That being the case,jurisdiction to enforce thesentence of imprisonment under Article 83.2,cannot beinvoked. Wehave no discretion
the matter. The law must take its course and,the warrant ofimprisonment must be executed. 5 10 Obviously we had to rule on our amenity to deal with the application fortheenforcement ofthesentence of imprisonment. As we are of opinion and so find and declare that consequent upon the judgment of the Lainaca Assize Court the accused foifeitcd hisseat asa Representative, wehavenojurisdiction to 15 exercise. The sentence of imprisonment is enforceable ipso jure and,the warrant of imprisonment must beexecuted. This finding anddeclaration putsanendtotheproceedings beforeus. HADJIANASTASSIOU J.: Questions of great impoitance had to be solved
these proceedings. Wetook time to consider them 20 and reflect upon the various submissions made on the
terpretation and application ofthe relevant provisions ofthe Constitution particularly Articles 71(c) and 64(c).
answering them we derived guidance from two decisions of the Supreme Court mimely Lefkios Chr.Rodosthenousv.The Republic, 1961 25 C.L.R. 382and our judgment
giving leave to prosecute the accused
these proceedings
re Georghiou
teresting arguments advanced onbehalf ofcounsel appearingforthetwosidesontheimplicationsof 30 the relevant provisions ofthe Constitution affecting Parliamentarians and their immunity. Adequate reference to them isgiven
the judgments of my bretfuen. Theprinciple guidetotheinterpretation andapplication ofthe Constitution are the relevant provisions of the Constitution 35 itself.
this case Articles 71(c) and 64(c). I must confess that the clarity of the language used by the constitutional legislator has simplified my task. They lay down .that a repre272 2 C.L.R. Attorney-General v. Georghiou Hadjianastassiou J. sentative upon conviction by a competent Court for an offence
volving dishonesty or moral turpitude forfeits his seat. No other provision of the Constitution suggests a contrary
terpretation. On the contrary as pointed out
the judgment of 5 Pikis.J. anumber ofother provisions ofthe Constitution support the same view,
myjudgment the
escapable conclusion
the light of the mandatoiy constitutional provisions is thai upon conviction for an offence
volving dishonesty or moral turpitude, asinthiscase,the representative forfeits hisseat. There10 fore, 1 associate myself with Pikis,J. and for the reasons given
hisjudgment that we have no discretion to suspend the enforcement of the sentence of imprisonment. Along with A. Loizou, Malachots and Pikis, JJ. 1 find and declare that the accused forfeited his seat as.a representative upon conviction by the 15 Larnaca Assize Court. Therefore, we have no discretion to suspend theenforcement of the sentence ofimprisonment. This declaration puts an end to the proceedings before us. A. Loizou J.: The elaboratejudgment of mybrother Justice Pikis, has made my task easier as Ishall be mainly recording my 20 reservations regarding his approach as to thejurisdiction of this Court to entertain the present application, which
the last analysis could not but be treated as raising an issue of
terpretation of the Constitution under Article 149(b) on an ambiguity regarding the meaning of the expression "convicted of an 25 offence" to be found"
Articles 64(
the case of the Cyprus Grain Commissionetc., and The New Vatyli CooperativeCredit Society of Vatyli, 4 R.S.C.C. p. 91 at pp. 92, 93, as follows: 30 35 "It is,therefore, pertinent and necessary for the determination of this Case to consider first what ismeant by the term 'ambiguity'
paragraph (b) of Article 149,'because
the very circumstances of thi? Case, it appears that an ambiguity has arisen
relation to the meaning of such term 'ambiguity'
the said paragraph (b). Ifa party to litigation makesa submission concerning the meaiung of a provision of the Constitution, applicable to or affecting such litigation, and if such submission is different from theviewshared by thetrial Courtor anyother party
273 Λ. Loizou J. Attorney-General v. Georghiou
-such litigation, then the necessity arises for a decision on this difference of opinion concerning the meaning of the provision
question of the Constitution. •
the opinion of the Court such difference of opinion, arising
the course of litigation, constitutes an 'ambiguity'
the sense of paragraph (b) of Article 149 (vide also The Republic and N. P. Loftis, .1 R.S.C.C. p. 34). 5 As this Court is vested, under Article 149(b), with exclu- 10 .sive competence to make
tciprctation of the Constitution
cacc of ambiguity, it follows that theCourt,before which suchan ambiguity has
fact arisen,asabove,cannotproceed to decide that the said ambiguity does not exist, on the g ound that
the opinion of suchCouitthemeaning of the 15 particular provision h clear, because thir. would amount to resolving
,a certain way the difference of opinion, i.e. the ambiguity, which has arisen
the matter and thus
ter fering with the .exclusive competence of this Court." With regard, however, to this last paragraph of the.quotation l shall be immediately dealing-
view of the developments that have come about since then. 20 v It would have been unnecessary for the Attorney-General of the Republic to
vite this .Court to entertain the present appli cation had the Assize Court proceeded, as it could and ought to 25 have done to resolve the matter itself, relying on the principles laid down
the case of TheAttorney-Generalof the Republic v. Mustafa Ibrahim and others, 1964 C.L.R. p.195. What was said therein with i.egai;d to the procedure for references under Article 144 of .the Constitution to the Supreme Constitutional 30 Court, -which was found to be no longer applicable or necessaiy ,as the provisions of that Article had been rendered
operative for the known reasons and that consequently all questions of alleged unconstitutionality should be treated as issues of law
the proceedings subject torevision on appeal
due course so far 35 as the lower Courts were concerned. - is equally applicable to cases of ambiguity such asthepresent oneas totheinterpretation of the Constitution that formerly came under Article 149(b) thereof, and'likewise theAssize Court ί-hould and could resolve 274 2 CrL.R.· Attorney-General v. Georghiou Αϊ Loizou J. the matter regarding the meaning and effect of the aforesaid phrase itself.
stead upon the conviction and sentence of the respondent on two counts of forgery arid fwo counts of uttering"forged d'dcu5 merits contrary to ss. 331, 335, 337, 339 and 20'of the Criminal Code", Cap. 154 and upon hearing counsel on both sides- as" to whether the respondent' ought to* be immediately conveyed to prison' to serve"the"term of impfis'orimerit-imposed on hirrf; they decided that a constitutional question" arose arid they had"ho' 10 right to resolve' if and left if to"the Officers fo whom the*Wa>rarit of Commitment to' Prison on a' Conviction' was addressed' "to take' a stand arid act accordingly." The said- Warrant Of Commitment to Piison wasi on Criminal1 Form $ίο. 50 prescribed by the Criminal Procedure Rules whicl? 15
so'far as relevant is addressed to:- "Divisional Police Com mander La'riacaV Police Officer arid all other Police Officers
Cyprus. You are hereby commanded·' but they added there-' after the'words" "Subject to the'provisions of the Coristitufiori" and then there followed its usual form of saying "to taKe'GeoV20 ghios Afxeritio'u Georghiou1of Lainaca·who' has·bceiV convicted on and convey him to the prison at Nicosia1 ". Once therefore the matter was-not so"resolved the Court Ka« as· of necessity and
the circumstances of this case to assume' 25 jurisdiction by virtue' of the powers' conferred upon it- under Article 149(b) of the Constitution arid1which'
ho way sliould be' considered' as having been taken away from it, and bearing- iiv mind the definition of the term "ambiguity"
-theConstitutiongiven by the then Supreme Constitutional Court
' the case' of 1 30 The Cyprus Grain Commission etc., (supra) which
'so far as the procedure"envisaged by the Constitution is·concerned should1 now be'read, as already said,
"the light of the principle's'laid dowri'
Ibrahim's case(supra) and examined whether to make' 1 a' declaration·as applied for, namely that the conviction' of the' 35- respondent-for the offences
question'
accordance'with' the judgment of the Assize Court of Larnaca of the' 30th' August 1983 "brought about automatically the'loss-of his seat as a re presentative
the House since the said· conviction·, so'that the immediate execution' of the sentence of imprisonment imposed 40 upon him'by the Assize Court' of Larnaca-is both possible and imperative" is warranted
the circumstances. 275- Λ. I.oizou J. Attorney-General v. Georghiou
my view upon the conviction of the respondent for the offences
question his seat as a representative became vacant. That all four countsin respect of which hehas been found guilty
volved dishonesty and moral turpitude the Assize Court itself should have no doubt.
fact this transcends
the reasons 5 given for imposing on the respondent its sentence. Moreover it had before itthepronouncementsof this Court
ReGeorghiou
granting leave under Article 83.2 of the Constitution for the prosecution of the respondent on thesame two counts of 10 forge: y and the two counts of uttering forged documents and
which hehad been found guiltyby them. The term "convicted" to be found
(c) of the Constitutionto which referen ce is made
(c) thereof means convicted by a compe tent Court which exercises criminal jurisdiction
the first
- 15 stance. This meaning is consistent with the provisions of our Criminal Procedure Law which was before
dependence and is
force since then, and according to which a conviction is effective and so a sentence imposed mutt be executed forthwith unless otherwise ordered by the Court, as provided by Law. A 20 conviction on a criminal charge by a Court of first
stance brings about all legal consequences that the Law ascribes to it. It is not and it cannot be partly effective on the one hand as regards the commencement of the tcim of imprisonment and the consequential admission to prison or the forthwith payment of a 25 fine and
effective as regards other consequences such as the disqualification from holding an office or the becoming vacant of a seat of a repiesentative. Under our Criminal Procedure Law an appeal has no effect on the conviction of a person except that if successful the Su- 30 prcme Court under s. 145
the appeal might be decided
favour of the appellant, shall dismiss the appeal if it considers that no substantial miscarriage of• justice has actually occurred; 5 10 .(
the matter." No doubt practical difficulties arise by giving this meaning to theword "convited" to be found
the aforesaid Articles of the Constitution. But itisnot for thisCourt'to legislateand resolve 15 . suchproblemswhich may
particular arisein theevent a person has his conviction quashed on appeal and
the meantime, as it has been argued a by-election was held as provided by Article 66.2 of the Constitution within a period not exceeding 45 days of the occurence of such vacancy or as the Law now stands. 20 (Law 55of 1983) s. 2, the first unsuccessful candidate belonging tothesamepoliticalparty as themember whoseseatwasvacated -becomes a representative by operation of Law. Such problems may be avoided by the expeditious trials of appealsagainstconvictions asthedelay
thetranscription of the 25 record isno reason for thedelayed administration ofjustice.
such casesadministrative arrangements will have to be made for the simultaneous preparation of the record of the Court and its availability upon the date judgment is delivered or soon afterwards. 30 On the other hand serious consequences might occur if a Representative convicted of an offence
volving dishonesty or moral turpitude is allowed to perform his duties, as such, and participate
the work of the House of Representatives for as longasan appeal, which willeventually bedismissed, is pending 35 and needless to say that for this period there is no restriction provided by Law, nor any other
dication as to when a pending appeal may ultimately be concluded. The principles governing the
terpretation of Constitution do 277 A. loizou J. Attorney-General v. Georghiou
the application of the Constitution cannot be corrected by constitutional amendments or other consequential" admini strative1· or legislative measures. Otherwise, a Constitutional Court would appear to have legislative powers, something con trary to the separation of. powers established as
1our country under the Constitution. 5
:the present case since,there·exists the element of the. con viction, of the-respondent on four offences which undoubtedly
volve as-of their nature:dirhonesty and' moral turpitude, and' were
deed so described alro by the Full Benclvof'this Court
. itsjudgment. - and
view of the
terpretation·. Γhave given to the term "convicted"of an offence"" fhave come to the conclu sion that-the:scat of the respondent as a Representative has be come vacant upon the. occurence of his conviction and' con sequently no question of the leave of this Court under Ait'cle 83.2.of the Constitution for his imprisonment is necessary; once he has vacated his scat as a representative and Ihereby make a declaration accordingly. 10 15 20 MALACHTOS J.: Georghios Afxentiou Georghiou, a practicing advocate, and a Member of the House of Representatives, was convicted on the 30th August. 1983. by the Assize Court sitting at La'Tiaca on the following counts: (i) forgery contrary tosections 331 and 335 of the Criminal' 25 Code, Cap. 154; (ii) uttering a false documentcontraiy to section 339 of the Criminal Code; (iii) forgery of official documentcontraiyto sections 20,331, 335 and 337 of the Criminal Code; and. 30 (iv) uttering of the false document referred to
count (iii> above, contraiy to sections
view of the nature of the offences, being offences of disho nesty and moral turpitude, as well as the sentence of imprison278 35 2CL.R. 5 Attorney-General :\. .Geurj>hiou Malachtos .1. ;ment pav-cd. i.ud
view of ihe provi: ions of A licle". 83. 71.and -64 ,of the Constitution, the question a osc .'bcfo.e the Assize Court \whcthe. the ^er.tof ihe accused
ihe -House of Rep.esentative:;'became vacant upon hr.,conviction.or whether he was stiH,con;idccd.;>.r1<a Member.of the Houceand.leave.of the 'High 'Court .(now the Supreme'Court), for,his imprisonment was re quired. A'ticlcs 83. 71 and 64 read as follows: 10 "83.1 :'Repre:;entati\cr. shall.not,be.liable:to.civil or criminal proceedings
.respect of.any statement made or vote given by them
the Bouse of .Representatives. 2 A 'Rep.csemative cannot, without the leave of the HighCou.t,,be prosecuted, avierted or imprisoned so long as he cc/iiihtues do be a •Representative. Such le;,\c is not iequi.ed,
the c..:.cof r.n offence punishable withdeathor impri-.-oiimcnt tbi :fi\c years o. -moie
ca.c the offender .is taken
the act.
such a ca-.-c the High Court being notified .forthwiih by 'the competent I'luho.ity decide:; whetherit should g.ant or .cfuse leave for thecontinuation of.theprosecution csdetention so long as hecontinue:·to be .a /Representative. : 15 20 25 30 3 ,lf the High Cou t .efuscs to gant leave for the p.ο ιedition of a ;Rep."c.,cnt.".ltvc, the pe iod du
g which the Rep.esentr.live e;\ruiot ihir, be prosecuted shall not be icckoned for thepu.poxs of any period of p.crx.iption for the offence
question. 4 if the High Court icfuses to graiit leave for the en forcement .of a sentence of imprisonment imposed on a Repiesentative by a competent court, the enforcement of such sentence shall be 'postponed until he ceases to be a [Representative'. 71. The seal of a Repruscutalive slu'.M become vacant (a) upon his death; -(b) upon his written resignation; 35 (c) upon the occurrence of .any of the circumstances refe.red to
paragraph.(
A ticic 70 64 A person .hall be qualified to be a candidate for election a* a Repiescntotive if at the time of the election that pi son - 5 i (
to opt.<»tton of Ihti. Constitution, comictcd of an offence
volving d ^ h o n c t y ο mo ?1 tuip.lude or is not under 10 cMty d'^quirlifiction imposed by .* competent cou.t foi ; ny elerto -A offence; (d) is not Μfffe mg f:om i1 mental dICCJ^SC
capacitating oiifh pc.ton from pcimg iv. a Rep esent?ti\e. M The \ s r ! z c C o u ' t t>fie h c p u u g r guincnti» of coinrel ippetynig
the cn'c ι m e d the following decision· "Μετά την καταδίκη του κατηγορουμένου σε φυλάκιση, μας απασχόλησε το εξής ζήτημα είναι συνταγματικά επιτρεπτό να υπογραφεί το ένταλμα για την μεταφορά και εγκλεισμό του καταδικασθέντος στη φυλακή εν όψει του ότι πρόκειται για καταδίκη βουλευτή; Το άρθρο 83 4 του Συντάγματος αφήνει να νοηθεί καθαρά ότι χρειάζεται άδεια του Ανωτάτου Δικαστηρίου για την εκτέλεση ποινής φυλάκισης σε μέλος της Βουλής ίων Αντι προσώπων. Από τον συνδυασμό των άρθρων 71( γ ) και 64(γ) του Συντάγματος προκύπτει ότι η έδρα βουλευτή κενούται αν μεταξύ άλλων καταδικασθεί για αδίκημα που εμπεριέχει το στοιχείο της ανεντιμότητας η ηθικής αισχρό τητας. Αφού μελετήσαμε το θέμα, καταλήξαμε στην άποψη ότι δεν έχουμε αρμοδιότητα να αποφασίσουμε κατά πόσο η βουλευτική έδρα του καταδικασθέντος έχει κενωθεί αυτόματα με την καταδίκη του οπότε δεν 6α ετίθετο θέμα εξασφάλισης της άδειας του Ανωτάτου Δικαστηρίου για την εκτέλεση της ποινής του. Για να λεχθεί ότι έχει κενωθεί ή βουλευτική έδρα του καταδικασθέντος θα πρέπει π ρ ώ τ α αν μη τι άλλο να αποφασισθεί 280 15 20 25 30 35 2 C.l-.Ιΐ. 5 Ό !5 20 25 Attorney-General ». Georghiou Malachtos .1. ότι συντρέχουν οι προϋποθέσεις που θέτει το άρθρο 64(γ). Πέρα από αυτό θα μπορούσε να εγερθεί το ερώτημα κατά πόσο έστω και αν υπήρχαν οι προϋποθέσεις του άρθρου 64(γ) θα απαιτείτο κάποια επιβεβαιωτική πράξη αρμόδιου σώματος αναφορικά με την κένωση της βουλευτικής έδρας. Αν αποφασίζαμε εμείς το σημείο αυτό σήμερα στην πραγμα τικότητα με αφορμή το θέμα της υπογραφής η μη εντάλματος για την φυλάκιση, θα αποφασίζαμε το status του βουλΕυτή και κατ* επέκταση το θέμα της σύνθεσης του Νομοθετικού Σώματος της Δημοκρατίας. Το Κακουργιοδικείο μπορεί όπως και κάθε πρωτόδικο Δικαστήριο να εξετάζει και να αποφασίζει πάνω σε συνταγ ματικά θέματα η επίλυση των οποίων είναι αναγκαία για την εκδίκαση μιας υπόθεσης. Είμαστε όμως της γνώμης ότι το γενικώτερο θέμα της σύνθεσης της Βουλής των Αντι προσώπων δεν είναι θέμα που μπορεί να αποφασισθεί από το Κακουργιοδικείο. Οι σκέψεις αυτές μας οδηγούν στο συμπέρασμα ότι ενώ θα πρέπει να εκδοθεί ένταλμα 6α πρέπει ταυτόχρονα να ενσωματώνει την πιο πάνω θέση μας. Έπειτα α π ό αρκετό προβληματισμό, καταλήξαμε ότι πρέπει να εκδοθεί το ένταλμα κάτω από την επιφύλαξη της εφαρμογής των προνοιών του Συντάγματος. Έχουμε επίγνωση της ανάγκης για σαφήνεια στα εντάλματα. Εγείρεται όμως εξ αντικειμένου ένα συνταγματικό θέμα που κρίνουμε ότι δεν δικαιούμαστε να αποφασίσουμε Οι αξιωματούχοι στους οποίους απευθύνεται το ένταλμα θα πρέπει να πάρουν θέση και να ενεργήσουν ανάλογα". 30 35 ("After sentencing the accused lo imprisonment the following matter has given us concc.n: is it constitutionally r pe.mis ,ible for the signing of the wan ant for the transporta tion and confinement of the accused
p/hon
\ iew of the fact that it conce ns the conviction of a member of the House of Repiesentatives? Article 83.4 of the Constitution implies clea ly that the leave of the Sup.emc Court is '.equiied for the execution of a sentence of imprisonment on a member of the House of Representatives. From the combination of Articles 71(c) and 281 Malachlos J. Attorney-General'v. Georghiou
volves the element' of dif honesty or moral tuipitude. A.ftcr con:idcring the matter, we reached the view that we 5 ha\e no competence to decide whether the '.cat of the con victed.
the House of Rcpreientativcs h^.s become vacant automatically wiih his conviction and the.efo.e the matter of sectu
g the lea\e of the Sup erne Court for the execution of his icntence would not have been railed. 10
ο d.e.-to r,av that the scat of the convicted
the House of Repre.dilative::. it must first of all, if nothing else: be decided lh'\i ihe.e exist the p.e:equities set out
(c).
addition to-ihr.tihe.e couldbc laised the question whehc: c\cn if thc.c existed· the ρ c equisiter. of A. tide' 15 64(c) the e would be ncccvia-y some confirmatory act of;.η app op.iatc org .n .eg?',d'ng thevacancy of the seat. If wc decided thir,point to d>.y
fact by leason of the signing of the wa rant for imp:i'ionm.cnt, we would have-decided the stilus of the member of the Hbu.e of Rep.eseiin.tivcs-aiid 2tt by the matter of the composition of the Legislative Body of the Republic. The Assize Court can, as eve.y fi.st
stance Court. examine and decide on'Gonstiiutional-matte.s whore ioIution is nccesia y fo. the t ialof a ca i e: But wc a e o f the 25 view that the mo.e gene,al matte, of the composition of the Houcc of Rep cr.enlalivesis-not.a matter that can be decided' by an Assize Court. These thoughts lead us to the conclusion that while the warrant must be issued, it must also embody our above 3ΓΛ stand. After much thinking wc decided that the wa'"iant must'.bcissued'underthe proviso of theenfo.cement of the provision': of the Constitution. Wc a c con'-ciot'.r, of the need foi cla ity
ihc wair.ivt. But thc.c a ises
fan a comliu.tional matter which we think we ir.ve no tight to- decide. The officials to whom the w;\ rant is add c^red murt take a stand
the matter and act accordingly"). 282 35 2 C I .'R. Attorney-General v. Georghiou Malachtos J . The Assize -Court ithen -proceeded .and signed the relevant warrant of commitment .to prison .commanding the Divisional Police Commander of La-naci* and .all other Police Officers
•Cyprus "subject ;to-the provisions of the Constitution", to take 5 Georghios Afxentiou Geoighiou.of iLarnaca, who was convicted of the offences iefe.red to earlier «
this judgment, and convey him to the prison at Nicosia and there deliver him to the officer
,charge theieof.
view of the above decision and the qualification "subject 10 to the provisions of the Constitution"
serted by the Assize Court
the said warrant the present application was filed on behalf of the Attorney-General of the Republic by the Deputy Attorney-General claiming— 15 20 25 30 (I) A decision that the conviction of the respondent Member of the House of Representatives, Mr. Georghios Afxentiou Georghiou, for the offences of forgeiy and uttering false documents provided by sections 331, 335, 337and 339of the Ciiminal Code, Cap. 154,according to the decision of the Assize Court of Larnaca of , the 30th August, 1983, caused automatically the loss of the representative capacity of the respondent from the time of his conviction so as to be possible and imperative the immediateexecution of the sentence of imprisonment on him by ihe Assize Court of Larnaca; and
case where the Supreme Court decides that the said conviction did not have as a result the loss of the representative capacity of the respondent, an application is submitted, for leave for the execution of the sentence of imprisonment which was imposed by the Assize Court as regards-the said conviction. The basic question that falls for consideration
the present proceedings is whether the respondent is or is not a Member of the House of Representatives taking
to consideration his conviction by the Assize Court
view of the provisions of 35 Articles 71(
volve dishonesty and moral turpitude. This was certified by this Court when granting leave for the 283 Malachtos J. Attorney-General v. Georghiou
the case of //; ReGeorghiou
the 5 House of Representatives should be considered as vacated. It makes no difference that the respondent has filed an appeal against his conviction
the meantime. His privilege for special treatment under Article 83.2 of the Constitution comes to an end and from that time onwards he should be treated like 10 any other citizen of the Republic who finds himself
the same situation. My above view finds support
the majority judgment
a similar case, that of Lefkios Chr.Rodosthenous v. TheRepublic, 1961 C.L.R. 382. 15 It follows from the above that the application under consideration,
its piesent form, which is based on Article 83.2 of the Constitution, cannot be entertained as the seat of the person concerned became vacant upon his conviction by the competent Court. 20 The net result of my decision is that the warrant'of commitment to prison of the respondent ought to have been executed forthwith, immediately after it was signed. TRIANTAFYLLIDES P.: The respondent has been convicted by an Assize Court
Larnaca of offences of forging and utter- 25
g forged documents and sentenced to oneyear's imprisonment and now the applicant Attorney-Genera! seeks a declaration that the respondent has, by virtue of Article 71(c) of the Constitution, ceased to be a Representative (that is a Member of the House of Representatives); or, alternatively, if the res- 30 pondent is found to be still a Representative, then the leave of this Court is sought, under Article 83.2 of the Constitution, for the enforcement of the sentence of imprisonment that was passed upon the respondent.
my opinion, this Court has jutisdiction to deal with the 35 present application under Article 149(b) of the Constitution because there has arisen, due to certain obseivations of the Assize Court after the delivery of its judgment and due, too, 284 2 C.L.R. Attorney-General v. Georghiou TriantafjHides P. to differences of views of the patties to the present proceedings, an ambiguity regarding the
terpretation and application of Aitides 64(
the senile of Aiticle 149(b), as it was construed
, 5
ter alia, the judgment
the case of the The Cyprus Grain Commission v. The New Vatyli Co-Operative Credit Society, 4 R.S.C.C. 91, 92-93. Also, this Court hasjurisdiction to entertain the present application under Article 83.2 of the Constitution
asmuch as 10 the respondent has,while being a Representative, been sentenced to imprisonment and such sentence cannot be executed without the leave of this Court under the said Article 83.2, if it is found that he is still a Representative.
view of what has been described as the "majority view" 15
the case of Rodosthenousv. The Republic, 1961 C.L.R. 382, 392, it has been argued that the respondent has automatically ceased to be a Representative upon his conviction by the Assize Court, as aforesaid, of offences
volving dishonesty and moral turpitude (see,
this respect,
re Georghiou,
the Rodosthenous case, supra, is not set out wholly
considered judgments but • it is,
part, the record of a discussion
Court between Judges and counsel. I do not think it can be tieated as creating a 25 really binding precedent, especially as the, at that time, High Court of Justice had no competence to
terpret the Constitution,assuchcompetencewasvested conclusively, under Article 149(b) of the Constitution
the, at that time, Supreme Constitutional Court, which had, also, exclusive jurisdiction, under 30 Article 85 of the Constitution, to decide "finally" whether or not Rodosthenous had, upon his conviction, ceased to be a Representative.
any event, the substance of the "majority view"
the Rodosthenouscase was that the High Court of Justice appeared 35 to have been of the view that, before exercising its jurisdiction on appeal
respect of leave granted under Article 83 of the Constitution, it had to be satisfied that Rodosthenous was still a Representative and as such proof was not adduced ihe High 285 Triantafyllides P. Attorney-General v. Georghiou
the end dismissed the case and decided only about the question of its costs. Assuming, however, that the Rodosthenouscase could, conceivably, be rega'ded as a binding precedent it should be treated as being clearly distinguishable from the present case because
the Rodosthenouscase noappeal wasfiledagainst his convicttion by the Representative concerned whereas
the present case an appeal has been filed against his conviction by the respondent Representative and it is still pending. 5 Thefilingof the said appeal isofdecisiveimportance regarding 10 the outcome of the application of the Attorney-General which is being determined today, because,
my opinion, the word "convicted"
Aitide 64(c) of the Constitution and, consequently, also,
relation to the provisions of Article 71(c) of the Constitution, means convicted
a final manner; and, thus. 15 once an appeal has been filed it means only a conviction which has become final as a result of the dismissal of the appeal which was made against it. Articles 64 and 71 of the Constitution read as follows: "ARTICLE 64 20 A person shall be qualified to be a candidate for election as a Representative ifatthe time of theelection that person(a) is a citizen of the Republic; (b) has attained the age of twenty-five years; (c) has not been, on or after the date of the coining
to 25 operation of this Constitution, convicted of an offence
volving dishonesty or moral turpitude or isnot under any disqualification imposed by a competent Court for any electoral offence; (d) is not suffering from a mental disease
capacitating 30 such person from acting as a Representative. ARTICLE 71 The seat of a Representative shall become vacantia) upon his death; (b) upon his written resignation; 286 35 2C.1I.R/ Attorney-General'V.Geonjhiou* Triantafjllidevr*. (c)1 upon' trie" occurience' of any' of ttte ciVcunfst'ance1; referred to'
'paragraph1 (c)1or (d)< of /uticlc 64' or if he ceases* to·be';'.'citizen'of the Republic"; 5 (d)1 upon- his*becoming theholder of an office mentioned'
-Article 70". What1 is the correct* meaning of trie' word' "convicted"
· Aiticle-64(c),is not'to'bVdctermined'on thCbasis of the relevant* provisions· of the'Criminal· Procedure*Law. Cap.1I:55:because" the·Constitution'cannot1 be*construed by'icfc-rence'to'statutory" ΪΟ provisions· subsidiary' fo'it\ Sucli; meaning- is to'be' found1in5 tKc light-of the coirect1interpretation'ofArticles·64(c)-and'71(c)' of Constitution; as· well' as*oP the'(ronstiiiitiom as·a whole: It must be'borne
mind that'even though1it was·
itially held tHat'Articles- 30*and 155:l: of our Constitution1,as well·'asi5' Article 6 of the,European·Convention'on1 human' Right'!·, do* not cicate a right-to trie availability of a remedy by way of appeal", trie existence of sucriiremcdy'ih,c1iminal:cases has been1 rendered mandatory" cvef since' the" Republic" of Cyprus has ratihedi·by means of the*
ternational Covenant's (Economic, 20 Social' and'Cultural' Rights and"' Civil and : Political' Riglvh,)' (Ratification)JLaw, l969'(Law 14/69). theUnited Natiom
ter-national'Covenant on Civil·and Political Rights, Article 14
ternational*Covenant* on·Economic,- Social'and'GuI-" tural· Rights, which was alsO'ietihed>by Law 14/69, m> relation to theapplication οίι-6^ι.ηΐ'ϋοη5ΐϊηιΠο3κιΙφΐΌ\Ϊ8ΐοη5
Cyprus, 30 useful reference-may be-made-to-the-case of loannides·v. The Republic, (Ί979)·3 G.ll R-.
«Aitide 64(c)'of· the"Constitution'
a manneVmco'n-* MStent with'the'mandatoiy
ternational' obligation of the ; 35 Republic of Cyprus undei trie"aforementioned: Ai tide 14
teinational-Covenant" on Civil'and Political Rights;-and, ;
' this-lespect, there"must*not' ever" Be lost sight of that'·the Constitution has" to be construed'and applied notmerely asa static'diy legislatKe'text'but'a's a living 40 entity adaptable to piesent-day needs and icalities. 287 Triaotaf) Hides P. Attorney-General τ. Georghiou
(c), and, con sequently, for the purposes of Article 71(c), too, is not construed as envisaging only a convictionwhich has been upheld on appeal,
case an appeal has been made against it, there cannot be avoided unreasonable consequences when the said Articles arc 5 applied within the framework of the Constitution as a whole: Thus, if upon conviction of a Representative for a crime
volving dishonesty or moral turpitude he forfeited at once his seat, notwithstanding the fact that he has appealed against his conviction and his appeal is still pending, his vacant seat 10
the House of Representatives would, normally,—(prior to the enactment of the Filling of a Vacant Seat of a Represent ative (Temporary Provisions) Law, 1983 (Law 55/83), which is of temporary duration)—have to be filled, under Article 66.2, by a by-election on a datefixedby the House of Representatives 15 within aperiod notexceeding forty-five daysfrom his conviction; and if, for any unforseeable reason, the appeal could not, even tually, be determined within the aforesaid period of forty-five days—(even though, of course, it would normally have to be dealt with as expeditiously as possible)—then the by-election 20 would have to take place and a new Representative would be elected, and he would take his seat
the House of Represent ative.';, subject to the outcome of the appeal of the convicted Representative; and if such appeal was
the end successful then the new Representative would have to leave the seat
25 question, to which would return its acquitted previous holder. Such developments, however, are neither reasonable, nor envisaged and possible under our Constitution. It cannot be correct an
terpretation of a provision of the Constitution, such as Article 64(c), if it results
the citizens having to exercise sometimes their sovereign will, for the pur pose of electing a new Representative, knowing that they may be doing so
vain because the appeal of the Representative, whose seat was vacated on his conviction by a trial Court, may be allowed. Similar
congruous results of construing "convicted"
(c) of the Constitution as meaning "convicted" only by a trial Court, irrespective of the outcome of the appeal of the Representative concerned against his conviction, would follow
relation to the application of provisions
our Consti- 40 288 30 35 2 C.L.R. Attorney-General τ. Georghiou THanlafyltides P. tution such as those made by Article 72.2, regarding the filling of a vacancy
the office of the President or Vice-President of the House of Representatives, andby Article 73,regarding party political groups
the House of Representatives. 5 1 appreciate that if the word "convicted"
(c) is to be
terpreted as meaning, for the purposes of the correct application of Article 71(c), "convicted finally after the dis missal of theappeal, if anappeal hasbeenmade",thesameinter pretation must be given to the word "convicted"
(c) 10
relation to the question of whether a person is qualified to be acandidatein a parliamentary election. This,however, would not,
my opinion, create any problem which cannot be adequately met by appropriate provisions
the electoral legi slation. 15 ' On the basis of the view, which 1 have already expounded
thisjudgment, regarding themeaning of theword "convicted"
Aiticle 64(c), I am,
deed, of the opinion that it is clear that
the present
stance the respondent is still a Representative and, so, this Couit has competenceunder Article 83.2 to decide 20 whether or not he should start serving the one year's sentence of imprisonment which was imposed on him,
the same way as this Court would have had competence to dedde whether he should have started serving a sentence of imprisonment if he had not been convicted of offences
volving dishonesty and 25 moral turpitude but of an offence of another kind which was serious enough to warrant sending him to prison; and
which case it could not have been said that by the combined effect of Articles 64(c) and 71(c) of the Constitution he had lost his seat
the House of Representatives. 30 35 Assuming, however, that I am wrong as regards the meaning of the word "convicted"
(c), I still cannot agree that
the present
stance the respondent has ceased, by virtue of Article 71(c) of the Constitution to be a Representative as soon as he has been convicted of offences
volving dishonesty and moral turpitude, and that, therefore, this Court hasSrno competence to decide under Article 83.2 of the Constitution whether or not he should start serving his sentence of imprison ment.
my opinion the seat of a Representative does not become 289 Triantafyllides P. Attorney-General v. Georghiou
which thereis primarily vested thepower and the duty to ensure that, at all times, its composition"is constitutionally valid. Γηthe'present
stance the House of Representatives would.
duecouise,have to officially notetheconviction and centencc 10 passed upon the respondent for offences
volving,dishonesty and moral turpitude and decide finally that his seat has been vacated; and
cace this was disputed then the competent organ to pronounce "finally" upon this matter would be this Court, acting as Supieme Constitutional Court,
view of its 15 clearly implied powers,
this respect, under Article 85 of the* Constitution. ί think that it is useful to point out, at this stage, that there maybeinstancesinwhich thisCourt-doesnotpossessjurisdiction under any ATticle of the Constitution, such as Article $5, to 20 pronounce on whether the seat of a Representative has become vacant by virtue of Article 71;and it should bestressed thatthis Court has no
herent competence to deal with any consti tutional matterjudicially unless such competencehas beengiven to it either expressly or by necessary implication. Thus,
25 the present
stance if the respondent had been sentenced to pay afineand hehad
sisted on continuingto act as a Repre sentative the only organ which could, after the dismissal of his appealagainst hisconviction,haveexcluded himfrom the House of Representatives on the ground that he had been convicted 30 of offences
volving dishonesty and moral turpitude- would have'been theHouseof Representatives: andincase hedisputed thevalidity of thedecision'
thisrespect of theHouseof Repre sentatives thenthe matter would:have to be brought before this Court,notunderArticle 83 oftheConstitution,bufunder Article' 35 85, oreven underArticle 140 or under Article 149(b) of the Constitution. Γηthe light of the foregoing I am of theview that,not only because the appeal of the respondent against his conviction 29v") 2 C.L.R. Attorney-General v. Georghiou Triantafjltides Ρ has not been determined yet, but, also, since we have not before us a formal decision, emanating from the House of Represent atives, that the respondent is being treated as having lost his seat due to his .conviction of offences of dishonesty and moral 5 turpitude, he continues to be a Representative for the purposes of the exercise by this Court of its relevant powers under Article 83.2,
decidingwhether ornotheshould start serving, pending the determination of his appeal, the sentence of imprisonment that was passed upon him. 10 I would, also, proceed to add that, as at present advised, I think that
view of the nature of the offences of which the respondent has been convicted he should start serving his sentence pending the determination of his appeal and this Court should grant leave under Article 83.2 of the Constitution for 15 this purpose. The House of Representatives, has, of course, competence, under Article 73.1 of the Constitution,to regulate its procedure
such a manner as to exclude the respondent from,
any way, participating
its proceedings while he is
prison and while 20 his appeal is pending;
the same manner as the respondent could have been excluded from partidpating
the proceedings of the House of Representatives, pending the determination of his appeal, if he had not been sentenced to imprisonment but if he had only been fined
respect of the offences of which he 25 has been convicted. LORIS J.: The present application which was filed on behalf of the Attorney-General of the Republic prays for: 30 35 (I) A declaration to the effect that the conviction of the res pondent, a member of the House of Representatives, by the Assize Court of Larnaca on 30.8.1983 (
Larnaca Criminal Cat-e No. 2855/83) entailed automatically the loss of his office as a member of the House of Represent atives, so that the immediate enforcement of the wairant of imprisonment could be made possible
thealternative,
case this Court finds thatthe convict ion of the respondent by the Assize Court did not entail the loss of his office, leave of this Court to enforce the warrant of imprisonment according to the sentence im291 Loris J. Attorney-General *. Georghiou
connection with the aforesaid conviction. As stated
the application same is based "on Articles 64, 71, 83 and 149 of the Constitution, as well as
the
herent powers of the Supreme Court". The facts lelied upon
support of the application are stated to be the following: (i) The respondent, a member of the House of Representatives for Larnaca District was convicted on the 30th August, 1983, by the Assize Court of Larnaca, of 10 offences of Forgery (two counts) contrary to sections 331 and 335 of the Criminal Code and uttering the forged documents
question (two counts) contrary to sections 339, 335 and 337 of the Criminal Code, and was sentenced to concurrent terms of one year's 15 imprisonment. (ii) Following the aforesaid sentence, the submissions as to its enforceability and a Ruling on this issue, the Assize Court issued a warrant of imprisonment of the respondent dated 30th August 1983
dorsed with the 20 words "Subject to the provisions of the Constitution". The respondent filed an opposition to the above application on 5.9.1983 mamtaining
ter alia that the present application is prematuie
view of the fact that the judgment of the Assize Court dated 30.8.1983 is not final and conclusive owing to the 25 fact that an appeal against it was filed on 31.8.1983. The first question which falls for determination is whether we can entertain the present application; Having given the matter very caieful consideration 1 hold the view that this Court hasjurisdiction to entertain the present 30 application
view of the conflicting submissions advanced after sentence before the Assize Court, the relevant ruling of same and the provisions of Article 149(b) of the Constitution coupled with the decision of the then Supreme Constitutional Court
the case of Cyprus Grain Commission and the New 35 Vatyli Co-operative Credit Society, 4 R.S.C.C. 91. f shall now proceed to examine the gist of the present application; our task
this respect is limited to the construction of 292 5 2 C.L.R. Attorney-General v. Georghiou Loris J the word "convicted" which is met
para, (c) of Article 64 of the Constitution. " Article 64 of the Constitution deals with the qualifications entitling a citizen of the Republic of Cyprus to stand as a candidate for an election
the House of Re5 presentatives whilst Article 71 provides for the forfeiture of a seat by a Representative; both Articles read as follows: "64. A person shall be qualified to be a candidate for election as a Representative if at the time of the election that person— 10 (a) is a citizen of the Republic; (b) has attained the age of twenty-five years; 15 (c) has not been, on or after the date of the coming
to operation of this Constitution, convicted of an offence
volving dishonesty or moral turpitude or isnot under any disqualification imposed by a competent Court for any electoral offence; (d) is not suffering from a mental disease
capacitating such• person from acting as a Representative". "71. The seat of a Representative shall become vacant— 20 (
paragraph (
". Tt is evident that if the word "convicted" is construed as
dicating "conviction" by a Court of first
stance,
the case
hand the Assize Court of Larnaca, the respondent should 30 be imprisoned forthwith and his seat
the House vacated, due to the fact that this Court
granting leave to prosecute, relying on the same summaiy of the facts and identical charges as those on which the respondent was convicted by the Assize Court, characterised the offences
question as
volving dio35 honesty and moral turpitude (vide
Re Georghiou
the first
stance and sustained on appeal" then the respondent would not be imprisoned forthwith nor his seat
the House of Representatives would become vacant upon conviction .by theCourtof first
stancependinghis appeal. 5 It is true that our Constitution did not safeguard a right of appeal; but as the learned President of this Court lemarked the Constitution has to be construed, bearing
mind at all material times, that it is not merely a static diy legislative text but a living entity. M» Thus
dependently of the unqualified right of appeal against conviction conferred by Statute (vide s. 25
tentational Covenant on Civil and Political Rights, Article 14
terpretation of constitutional provisions need not neces sarily follow the pattern of construction of municipal legislation, although the traditional
terpretation of statutes and rules ιelevant thereto is nowadays of lesser consequence
view of 25 emphasis being laid on the teleological
terpretation of eveiy kind of legislation". {Police v. Georghiades
municipal statutes there a^e occasions where a Court may depart from the plain words of a statute; the Law on thesubject was authoritatively statedby Lord Simon 30 of Glaisdale
Stock v. Frank Jones {Tipton) Ltd., [1978] I AH E.R. 948 (H.L.) at p. 954 as follows: " A Court would only be justified
departing from the plain words of the Statute were it satisfied that
the case1
1 hand* if we construe' the word1 "convicted"' which; occurs>
vpara'·(c)*of Article- 64*of."the·Constitution;· fo' mean "convicted^By> a*Court·-of•"first
stance despite;a"'pending; ΙΟ- appeal'against conviction!' aimember-of the Hbuse of Represent atives will'bVforfcitihg;hisi seat
: the^Hbuse, aby-electionwill· be held".pursuant.to theprovisionti-of· Aiticle-66;2:of'the-Consti tution;,another-candidate will'.eventually·occupy-trie vacant1 seat1 and if»the member unseated is-successful'
iKi^appeal'he'-woulil1 15' not be:able to regain<Kis;seat·"as>nowhere1ini the· Constitutionsuch a».provision1·exists'either·'for·'the-reseating of the-"unseated1· member'ofi the House,or-for the-'unsealing',on the;member-"wlio> was elected1in;the post-vacated-under tKe:circumstances'afore said20' 25 But it is-not'only the member of the;House"whV will!be.un seated' who will be prejudidally affected; the political'party to' which·he*belongs" will'also'suffer- for no :obvious-reason!· Thus· Article;73.12\of the'Constitution".provides*as>follows: "Any. political-party whichMs.represented>atMeasl·by-twelve per'centum-of the total-number-of.'the-Representativcs
; . the House,of Representatives can form and'shalbbecntitlcdi to be recognised' as-a-Political'patty group". Supposing,that-the-unseating 1 of a member of the House; (convicted
the first
stance" only with a'pending; appeal)' 30 who bclongS'to'a-political'party. recognised-as"apolitical!partygroup", results
-the'fall* o f his" party-below'the: percentage required'by. Arncle-73;]2!of'tfie-'Constitution-and>the resulting' by^lection is- contested* unsuccessfully by.' trie;said*- political· party would'it'be fairthatthVsaid'political'party, should'^cease 35'· to be recognised'as having"a political party.'gioup"
theHouse
-spite of the - fact the· unseated member's conviction was quashed on appeal?.' Ifeel that'I should state here that the-hearihg,of the appeal 295 I-oris J. Attorney-General v. Georghiou
stance
spite of a pending appeal, we shall be con- 10 fronted with gross balance of anomaly which will result
a chaotic situation which would have never been envisaged nor could have been accepted by the promoters and the draftsman of our Constitution. I hold the view that the anomaly can be obviated without detriment to the objective of Article 64 of the 15 Constitution the language of which is susceptible of themodi fication required to obviate theanomaly. Ihave decided,there fore to construe the crudal word "convicted" which occurs
para (c) of Article 64 of our Constitution to mean"finally con victed" thus obviating the anomaly and the threatening chaos 20 which will affect as
dicated above not only themember of the House concerned, but also the political party to which he be longs and eventually the smooth functioning of the House of Representatives.
so doing Iam not altering thelanguage of theConstitution 25 which is susceptible to this minor modification required to obviate the anomaly.
view of the above and
view of thefact that the appeal of the respondent is still pending I would dismiss the present application as premature. STYLIANIDES J.: Georghios Afxentiou Georghiou,an advocate of Larnaca and a Member of the House of Representatives, was prosecuted with the leave of this Court under Article 83.2 of the Constitution—(See
Re Georghiou,
formation and passed 296 30 2 C.L.R. Attorney-General v. Georghiou Stylianides J. sentence of one year imprisonment on each of the four counts to run concurrently. Mr. Loucaides submitted before theAssizes that thesentence of imprisonment was enforceable forthwith as by the verdict 5 of the trial Court the seat of Georghiou
the House of Representatives became vacant under the provisions of Art. 71(c) of the Constitution. Mr. Christofides for the accused submitted thattheAssizeCourtlacked competenceto pronounce on the forfeiture of a parliamentary seat as this was within the 10 exclusive jurisdiction of the Supreme Court. The trial Court expressed doubts as to their competence on the issue raised. They issued a warrant of imprisonment under the provisions of the Criminal Procedure Law but they
serted a jurat
the following words: "Subject to theprovisions of the Constitu15 tion". The trial Court was confronted with an unprecedented problem which
thecircumstances they abstained from solving. On the following day—31st August, 1983—the present appli cation wasfiledwhereby a decision is sought thattheconviction of the respondent—Member of the House of Representatives 20 of Larnaca, Georghios Afxentiou Georghiou— of the offences of forgery and uttering false documents, contrary to sections 331, 335, 337 and 339 of the Criminal Code, Cap. 154, by the Assize Court of Larnaca on 30.8.1983 entailed automatically theloss of office andvacation of his seat, andtheimprisonment 25 imposed canbeexecuted without leave.
thealternativeleave of the Supreme Courtis prayed for theexecution of thesentence of imprisonment. The application is based on the provisions of Articles 64, 71, 83 and 149 of the Constitution. 30 Rival submissions were made by Mr. Loucaides and Mr. Christofides on the following important constitutional issues:(a) Competence; 35 (b) The meaning of the word "καταδικασθεί"
thecon text of Articles 64(
the House of Representatives is -within the juris- 5 diction of -the House of Representatives and he -referred to an unpublished decision taken by the House of 'Representatives
the early days of the establishing of the Republic
1961 by majority of votes
the case of Jiodosthenous. I need not delve
to the contents of the speeches .preceding .10 that decision and the decision itself as an unpublished decision of the House is not a factor to be considered
determining the question posed. This Court is vested with the jurisdiction and powers of the Supreme Constitutional Court and the High Court established 15 under the Constitution. (See Administration of Justice {Miscellaneous Provisions) Law, No. 33/64; The Attorney-General of the Republic v. Mustafa Ibrahim and Others. 1964 C.L.R. 195). This Court'has exclusivejurisdiction to make,
case of ambi- 20 guity, any
terpretation of the Constitution—(See Article 149(b) ). "Ambiguity"
the sense of paragraph (b) of Art. .149was defined by the Supreme Constitutional Court
the case of Cyprus Grain Commission etc. v. New Vatyli Co-operative 25 Credit Society, 4 R.S.C.C 91, at pp. 92-93, thus:"If a party to litigation makes a submission concerning the meaning of a provision of the Constitution, applicable do or affecting such litigation, and if such submission is .different from the view shared by the trial Court or any 30 other party
the said litigation, or even if the trial Court .takes a view concerning such meaning which is different from the view held by all the parties
such litigation, then the necessity arises for a dedsion on this difference of opinion concerning the meaningof theprovision
question 35 of the Constitution.
the opinion of the Court such difference of opinion, arising
the course of litigation, constitutes an 'ambiguity'
the sense of paragraph (b) 298 2'G.L.R: Attorney-General! v. Georghiou' Stylianides J. ofAiticlc' 149—(vide also The Republic and N.P'. Loftis.. i; R.S.C.C. pi. 34r; it is*not permissible:to*say that an ambiguity'does not exist on the ground'-that
'the opinion of the'Court-the meaning of the paiticular'provision,is;cleaT,.because this would1·amount to ;resolving:m avcertain-waythe difference' of opinion', iie. the ambiguity: The- Supreme Constitutional· Court
·,virtue of Article' S51 had! exclusive jurisdiction1, to adjudicate on any question- with regard1 to the- qualifications; of candidates for. elections of Members-of the House of Representatives. Such- qualifications'' are set out
Article-64' that read's as. follows"A person shall1be1qualified1,to1be a candidate for election as'a.Representative,ifat the time ofth'eelectiowthat person(a). is a citizen of the· Republic; (b): has>attained1-the age of twenty-five years;. (c) has not been, on or after the date of the coming,
to operation of this Constitution,,convicted'of an. offence
volving dishonesty or moral! turpitude- or· is· not under any disqualification' imposed1 by a- competent Court, for any'electoral1 offence;; (d) is not suffering, from a»mental' disease
capacitating. such. pe_rson* from' acting, as. a Representative". Article·71<provides· when.the-seat of ai> Representative-shall! become, vacantia) upon his death;. (b)i upon; his. written*, resignation1;' (c): upon, the occurrence- of any of the circumstances· referred' to
1paragraph (c)'ior (d)i of Article164! or if he'ceases,to·be a.citizen- of the Republic;. (d)· upon his becoming the;holder of an office-mentioned
. Article 85, read1,
.conjunction with! Articles 64' and 71(c); confers competence on1 this Court to> pronounce· upon, the 299 Stylianides J . Attorney-General v. Georghiou
the application and the relevant constitutional provisions. this Court is the only organ of the State that has competence to deal with the matters raised
the application. The whole 10 structure of our Constitution points that its drafters
tended to assign to the highest judiciary all matters relevant to the right of a person to occupy a seat
the House. The House of Re presentatives only notes the happening of an event leading to the vacation of the seat of one of its Members and thereupon 15 it ensures that its composition is constitutionally valid. B. MEANING OF THE "CONVICTED": WORD "ΚΑΤΑΔΙΚΑΣΘΕΙ"— The Constitution is not an ordinary statute. It must be construed to give effect to the
tentions of those who made 20 and agreed to it and those
tentions are expressed
or to be deduced from the terms of the Constitution itself and not from any preconceived ideas as to what such a Constitution should or should not contain. (Hinds v. The Queen,[1976J 1 All E.R. 353). it must be construed as a living entity and not as a static 25 legislation. The seat of a Representative is vacated if he is convicted of an offence
volving dishonesty or moral turpitude. The offences, of which the respondent was found guilty by theAssize Court of Larnaca, are undoubtedly offences
volving dishonesty 30 and moral turpitude. Γη Re Georghiou,
respect of which it is sought to prosecute the respondent appear to be offences
volving dishonesty and moral turpitude,
the sense of Article 64(
the House of Representatives would become vacant". 5 10 A. Loizou, J.,
the same case said at p. 24:"Finally and this is connected with the nature of the offences, which
volve, as already stated, an element of dishonesty and moral turpitude,
the sense of Articles 64(c)and71(c)oftheConstitution,wherebyupontheoccurrence of a conviction of an offence
volving dishonesty or moral turpitude the seat of a representative becomes vacant". The question that arises is the meaning to be ascribed to the word "convicted". I consider the matter to be devoid of authority. Lefkios Rodosthenousv. 77)eRepublic, 1961 C.L.R. 382,isnotan author15 ity on the matter. The report depicts merely an impromptu discussionbetweenJudgesandcounselanditcannotberegarded as creating a binding precedent. Furthermore the proceedings were before the High Court which had no jurisdiction either to construe the Constitution or to pronounce on the provisions 20 ofArticles64or 71ofthe Constitution. Its powerwas limited only to grant leave for enforcement of a sentence of imprisonment. Counsel wereinvitedbythe HighCourt, beforeexercisingits suchjurisdiction, tosatisfy the Court that Rodosthenous was still a Member of the House of Representatives, and
25 default of such proof it dismissed the appeal of Rodosthenous butdealtextensivelywiththequestion ofcosts. Thesententious statementsofthemajority ofthejudgescouldnotform ajudicial precedent. Rodosthenous case is further distinguishable from the present 30 case. Rodosthenous was convicted by an Assize Court sitting at Nicosia. No appeal was filed against his conviction. At the time his appeal for execution of the sentence of imprisonment was taken up by the High Court, no appeal was pending and the period of appeal had already expired. 35 Neither the Constitution nor the Courts of Justice Law, No. 14/60,northeCriminalProcedureLaw,Cap. 155,safeguard the right of appeal of a person found guilty by the trial Court. Article 6 of the European Convention for the Protection of 301 Stylianides J. Attorney-General v. Georghiou
stitute a system of appeal Courts. A State which does set up such a Court consequently goes beyond its obligations under Article 6—{Belgian Linguistic Cases, 11 Yearbook of the European 5 Convention on Human Rights,
the case' should be subject to the provisions of Article 6. The procedure for review, which was provided
Austria under Article 353
stituted, the person concerned is 15 no longer an accused within the' meaning of Article 6—(X. v. Austria, Application No. 1237/61, 5 Yearbook of the European Convention on Human Rights, 96, p. 100).
this country the Supreme Court
a series of decisions established that there"was only a limited right of appeal subject 20 to the provisions of the Criminal Proceduie Law, and that a right of appeal exists only where it is expressly conferred either by the provisions of the Criminal Procedure Law, Cap. 155, or by the provisions of s.25
Georghadjiscase reference was made to Article 30 of the 30 Constitution, Article6
the Case "Relating to certain aspects of the laws on the use of languages
education
Belgium", and adopted the hitter's decision that States are not compelled to
stitute a system of 35 appeal Courts
criminal cases. The
ternational Covenant on Civil and Political Rights adopted* by the United Nations' General Assembly on 16th December, 1966, was ratified by this country on 28.2.1969 302 .2(C.L.R .Attorne)-General \.-Georghiou St>lianides J. by Law No. 14/69.and«came
to force on 23rd 'March,>1976, after -.the deposit with -the lSecietaty-General of the (United ^Nations of,the 35th
strument of ratification asiprovided
Aiticle .49 .thereof. This |
teinational ^Covenant, having-be;n 5 ratified iimder Article 169,of.our Constitution, has superior iforce to the municipal .law. Article il4
this .country. This provision was considered 'by the Human Rights .Com15 mittee of the United Nations
the case of Consuelo .Salgar de Montejo\V. The State of Columbia. The Committee .
its decision kdeliye.ed on 24.3.'82 considered that the expression •"according ito law" ,
tended to 'leave the veiy.existence of .the.right of leview 20 to the discretion,of the States paities, since the rights ,aie those recognized by the .Covenant, and not merely ,those lecognized by.domestic law. Rather, what is to be.determined "according to law" is,the modalities.bywhichthe ; rcviewby a higherlribunal is to be canted out. 25
the case of Larry James Pinkney y. Canadathe Committee held that the delay for 34 months by the Canadian authorities to produce the transcripts of the trial for ,the purpose of the appeal -was
compatible .with the right safeguarded under Articles 14
view of Aiticle ,14
ternational Covenant on Civil and Political Rights, which is operative
Cyprus with superior force to any municipal law,the only reasonable c o n d u ction of the term "conviction"
,the case of a person found guilty by a first '
stance Court, who files an appeal, which is 35 still .pending, is the confirmation of his guilt by the reviewing Court—the Appeal Court. When a seat is vacated, a Representative is finally unseated. There is no provision
the Constitution for a Representative, A-3 Stylianides J. Attorney-General v. Georghiou
terpretation of the term "convicted", confining conviction to the first
stance Court, where an appeal wasfiled,would be unreasonable and 5 would lead to absurdity. Though appeals must be heard as expeditiously as possible, we would again—if a narrow
terpretation to the term "convicted" is given—be faced with a further absurdity: A by-election shall beheld within a period not exceeding 45 days of the occurrence of the vacancy, under 10 Art. 66.2oftheConstitution,for thefilling ofthevacancy. The successful candidate
the by-election will take his seat
the House, if the unseated Representative is successful before the Appeal Court, either byacquittal or byan order for retrial, the by-elections would be
vain. There is no provision
15 theConstitution and no machineryfor expelling one of the two —the unseated Member and the newly elected Member—from the House. This would be a monstrous situation. This could not have been the
tention of the drafters of the Constitution. When they madethe highestjudiciary the
ter- 20 prefers of the Constitution and the arbiters of its application, they definitely expected that the judiciaty would
terpret the Constitution
such a way as to giveefficacy toit and smooth parliamentary life to the people of the country. "Conviction"
the sense ofArticles 64and 71of the Consti- 25 tution isafinalconviction. Aconviction doesnot become final and doesnot acquire theforce of resjudicata until it is affirmed onappeal orthetimeofappealhasexpired. Aperson convicted by a first
stance Court, pending his appeal, is still a person "charged with a criminal offence". This reasoning may not 30 strictly apply under the English Cri
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.