clr/1984/1984_3_1437.pdf

(1984)unless absence of Counsel is for any reason justified; that extra judicial causes, that is, causes unconnected with the merits of the case, are not relevant and cannot be taken into consideration in the administration of justice; that the fact that both Judges and advocates play a part in the administration of justice does not reduce the issue to one between Judges and Advocates; and that, therefore, the absence of Counsel and the applicant are inexcusable and, on account of that reason, the recourse of the applicant must be dismissed. 5 Application dismissed. 10 Per Pikis, J.: The right to strike is a fundamental human right that deserves due protection. Our Courts are, as they ought to be, vigilant in the protection of human rights. Only if the right of audience of advocates bound up with their clients' constitutional right to have an advocate of their choice to re- 15 present them, is violated or denied, can they have a personal grievance respecting their participation in the administration , of justice. The services of advocates are not employed by the Courts or Judges for that matter, but by their clients. Cases referred t o : 20 Efstathios Kyriacou and Sons v. Mouzourides

(1963)2 C.L.R. 1; Charalambous v. Charalambous and Another

(1971)1 C.L.R. 284; Police v. Ekdotiki Eteria

(1982)2 C.L.R. 63; Police v. Georghiades

(1983)2 C.L.R. 33; Theofilou v. Republic

(1984)2 C.L.R. 114; Evgeniou v. Police

(1984)2 C.L.R. 327. Recourse. Recourse against the decision of the respondents to promote the interested party to the post of Land Officer, 1st Grade, in 30 the Department of Lands and Surveys, in preference and instead of the applicant. Applicant and his Counsel A.S. Angelides absent. Respondents absent. 1438 25 3 C.L.R. Rousos v. Republic No appearance on behalf of the Attorney-General of the Republic. Cur. adv. vult. PIKIS J. read the following judgment. The unexplained 5 absence of a party signifies indifference tothecausepropounded before the Court and disregard of the judicial process And as such, it is inexcusable. In such circumstances, the Court is justified to deal with the case in the absence of the defaulting party and make an appropriate order. Precedent establishes* 10 that discretion to adjourn is interwoven with the exercise of the judicial duty to administer justice according to law; there­ fore, it must be exercised judicially by reference to the facts of the case, especially facts put forward in support of an ad­ journment. Where no explanation is given for the absence 15 of a party and his counsel, as in this case, the Court may proceed and deal with the case in the absence of the defaulting party, by dismissing thecase for want of prosecution, or hearing the cause in the absence of the respondent, as the case may be. Application of these principles to the facts of the case before 20 me, considering the burden cast on the applicant to prosecute his case, would inevitably entail the exercise of my discretion by dismissing the recourse for want of prosecution. Never­ theless, I consider it my duty to notice the facts relevant to the absence of counselfor theapplicant,despite failure of the appli25 cant or his counsel to bring them to the notice of the Court. because they have become common knowledge by the publicity given them in the press and elsewhere. Hence, I shall notke them in order to decide whether they make the absence of appli­ cant and his counsel excusable and, as a result, justify the ad30 journment of the case. It is common knowledge to everyone concerned with the administration of justice that the Cyprus Bar Council invited advocates to abstain from appearing before the Courts, yester35 day, 21st December, 1984,in orderto protest at certaindecisions of the SupremeCourt unconnectedwith thefacts of this or any particular case. The one cause of complaint of the Council. more closely connected with the administration of justice, See, inter alia, Efstathios Kyriacou & Sons v. Mouzourides

(1963)2 C.L.R. 1; Charalambous v. Charalambous ά Another

(1971)1 C.L.R. 284. 1439 Pikls J. Rousos τ. Republic

(1984)concerns a recent circular of the Supreme Court addressed to Judges of the District Courts, reminding that justice must be publicly administered in open Court. An approach to the administration of justice dictated, by the provisions of Article 30.2 of the Constitution, and the need to ensure that justice 5 is not only done but is seen to be done. Judging from the failure of counsel of the Republic to appear and represent the Republic on behalf of the Attorney-Generabin this andother jases pending before me, it seems that at least some of the officers serving in the Office of the Attorney-General joined 10 :he strike action declared by the Cyprus Bar Council. Bearing in mind the stage of theproceedings and theburden lying on the applicant to prosecute his case with a view to facilitating proper inquiry into .the merits, the case must, in the exercise of my discretion, be dismissed, unless absence of 15 counsel is for any reason justified. Is, then, the failure of counsel for the applicant to appear, excusable? The answer depends upon proper appreciation of the role of Judges and advocates in the judicial process. That both play a part in he administration of justice does not reduce the issue to one 20 between Judges and advocates. If that were thecase,it would elegate theissues in thecause to a secondary place and divert he course of justice to areas unconnected with the merits of he case. What if Judges had complaints against members of he Bar? Would they have a right to refuse to hear advocates 25 η any judicial cause? The answer is no. It would involve a flagrant violation of the constitutional uty of Judges to safeguard unimpeded access to Courts of aw and breach of the constitutional right of audience of the itigant and his advocate before the Court. 30 Judges are dutybound toadministerjustice accordingto law. η exercise of this power they are the mouthpiece of the law tself. It is the responsibility of Judges touphold thejudicial irocess not only for the protection of the rights of individual itigants but also those of the public in the due administration 35 »fthelaw. For,itisthroughtheefficacy ofthejudicial process hat the rule of law-can be sustained. Advocates, too, have in important part to play in the administration of justice, is we heard the learned Attorney-General, Mrs. Soulioti, emind yesterday on the occasion of the admission of new 40 1440 3 C.L.R. Rousos v. Republic Pilds J. members to the Cyprus Bar. They are, she told them, under a twofold duty to protect the interests of their clients and aid the Court in the administration of justice

1. Discharge of these duties binds advocates, as indeed Judges are bound, to 5 participate in the judicial process not for any cause of their own but for the common came of sustaining the efficacy of the judicial process. It may be argued that advocates have, like everyone else, a right to strike, constitutionally safeguarded by Article 27 10 of the Constitution. The right to strike is a fundamental human right that deserves due protection. Our Courts are, astheyought to be, vigilant inthe protection of human rights
2. Only if the right of audience of advocates bound up with their clients' constitutional right to have an advocate of their choice 15 to represent them,isviolated or denied, cantheyhave a personal grievance respecting their participation in the administration of justice. The services of advocates are not employed by the Courts or Judges for that matter,but by their clients. And, as earlier explained, the administration of justice in individual 20 cases can never be allowed to become a matter between the Bench and the Bar. Judges and lawyershave a common mission to see that justice isdone in the particular case in vindication of the law. Consequently, unless we recognise that strike action by advocates 25 against the judicial process itself is for any reason permissible, I must adjudge the absence of counsel of applicant inexcusable and, giventheabsenceofhisclientaswell,dismiss,intheexercise of my discretion, therecourse. The unimpeded administration of justice is the pillar of constitutional order, and the basic 30 safeguard for the protection of human rights, including the right of access to the Courts of law. The machinery of the law cannot be allowed or suffered to come to a halt for any reason. It istheforemost duty of Judges tomaintain this order and sustain the judicial process free from every obstruction. 35 No consideration can prevail over the discharge of this duty. Judges cannot abdicate their solemn responsibility to sustain the judicial process and strive to ensure that the stream of justice flows perennially. 1 Sec, s. 15 — Advocates Law, as amended by s. 7 Law40/
3. 2 Sec, inter alia, Police v. EkdotikiEteria

(1982)2 C.L.R. 63; Police v. Georghiades

(1983)2 C.L.R. 33; Theofilou v. The Republic

(1984)2 C.L.R. 114; Evgeniou v. ThePolice

(1984)2 C.L.R. 327. 1441 Pikis J. Rousos r. Republic

(1984)At the root of the matter is whether extra judicial causes, that is, causes unconnected with the merits of the case, are relevant and can betaken into consideration in the administrationofjustice. Inmyjudgment, the answer isin thenegative. Acknowledgment of extra judicial causes as relevant to the 5 exerciseof thediscretionary powersof the Court, would subordinate the judicial process to considerations extraneous to the administration of justice. Such acknowledgment would, I believe, undermine the foundations of the administration of justice to the detriment of everyone; particularly Judges and 10 lawyers who are pledged to sustain the administration of justice according to law. I took time to consider my decision and reserved judgment overnight in order to reflect upon every aspect of the matter. I confess I faced a personal dilemma lest the impression is 15 given that Ijoin issue.in myjudicial capacity with membersof the Bar, considering that the strike action is directed against the Supreme Court, of which I am a member. Reasons of personal sensitivity have tempted me to let the matter pass and refrain from exploring the issue at depth. But my duty 20 to administer justice according to law, allowed me no such option. Before discharge of this duty, all my hesitations subsided, as they should. Having duly reflected on the matter before me, I find the absence of counsel and the applicant inexcusable and, on account of that reason, the recourse of the 25 applicant liable to be dismissed. And I order its dismissal. I have not overlooked in reaching mydecision that applicant mayhave been unawareofthefailure ofhisadvocateto appear and represent him. That is just a supposition; there are no facts to support it. The relationship between client and ad- 30 vocate is confidential. Before the eyes of the law, there is a unity of purpose between client and advocate. The absenceofbothmadeinevitablethedismissalofthecase. Whether circumstances exist that make necessary, in the interests of justice, the reinstatement of the case, is something I am not 35 presently concerned to decide. Recourse dismissed. 1442