(1984)1984 April 10 [PJKIS, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION COSTAS MAKRIDES, Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE COUNCIL OF MINISTERS, Respondents. (Case No. 509/83). Judge—Disqualification—Bias—Annulment of appointment of interestedparty topost ofRegistrationOfficerbecauseoftheinadequacy· of the inquiry into his qualifications—No findings questioning his veracity or credibility—Recourse against subsequentappointment of interestedparty to the same post assigned to same Judge 5 for trial—Application by interested party that Judge should exclude himself from trying the case not based on grounds of bias,but becauseinterestedparty wouldfeel moreat easeifanother Judge dealt withthe case—Question at issueinthesecondrecourse a pure question of law—Trial Judge not choosingto try the case 10 but assigned to him under the system inforce—No justification for disqualifying himself from trying the case. The applicant in this recourse challenged the validity of the decision of the Council of Ministers to appoint the interested party to the post of Registration Officer in the Sensus Depart- 15 ment. At the directions stage Counsel for the interested party applied that the Judge should exclude or exempt himself from trying the case for the reason that he had earlier tried another recourse of the applicant directed against the decision of the Public Service Commission to appoint the interested party to the 20 same post. In that case the Judge annulled the appointment because of the inadequacy of the inquiry into the qualifications of the interested party and the defective exercise of the discretionary powers ofthe Public ServiceCommission; and the findings 304 3 C.L.R. 5 10 15 20 Makrldes v. Republic oftheJudgerested onanobjectiveviewoftheprocedure followed. No findings were made questioning either the veracity or the credibility of the interested party or of anyone else. Counsel for the interested party stated that his application was not based on the existence ofany grounds giving rise to bias; and that his submission wasconfined to a request on the part of hisclient that the Judge steps down for he would feel more at ease if another Judge dealt with the case. What was primarily at issue in this recoursewas the competence of the Council of Ministers to take the subjudice decision, a pure question of law. The Judge did not choose to trythecase; itwasassigned to himfor trial bythe system of rotation in force at the Supreme Court, whereby cases are assigned to Judges in numerical order. Held, that a Judge normally assigned for the trial of a case ought not to beexcluded except in the face ofgrounds giving rise to bias and there was no submission of bias in this case; that after the assignment of the case to him, in the absence of grounds oflawdisqualifying him from sittinginthecase,theJudge became the natural Judge in the cause; that there wasnojustification for disqualifying himself from trying the case; and that he was duty bound to try it and in exercise of this duty he will give directions for its hearing (pp. 310-311 post). Directions accordingly. Cases referred to: 25 Makrides v. Republic
(1983)3 C.L.R. 622; Ex parte Church of Scientology of California. Law Times of 20.2.1978; Economides and Another r. The Police
(1983)2 C.L.R. 301; Razis and Another v. Republic
(1983)3 C.L.R. 309; 30 Theodorou v. Police
(1971)2 C.L.R. 245; Vassiliades r. Vassiliades. XVIIT C.L.R. 10 at p. 21; Pieris v. Republic
(1983)3 C.L.R. 1054. Application. Application by the applicant for the exemption of the trial 35 Judge from trying the recourse on the ground that he had already tried another recourse against his appointment by the Public 305 Makrides v. Republic
(1984)Service Commission to the post of Registration Officer in the Census Department. C. Loizou, for the applicant. N. Charalambous, Senior Counsel of the Republic, with A. Vassiliades, for the respondent. 5 K. Michaelides with A. S. Angelides, for the interested party. Cur. adv. vult. PIKIS J. read the following ruling. Costas Makrides, by his recourse, challenges the legality of the decision of the Council of 10 Ministerstaken on 13.10.83to appoint Christodoulos Nicolaides to the post of Registration Officer in the Census Department. After exchange of pleadings, the case came up for Mention on 30.3.84 in OTderto give directionsfor the hearing. Counsel for theinterested party made, at that.stage, an oral application that 15 I should exclude or exempt myself from trying the case, for the reason that I had earlier tried another lecourse of the applicant directed against .the decision of the Public Service Commission to appoint Christodoulos Nicolaides to the post of Registration Officer, apparently the same position to which he was later 20 appointed bytheCouncilof Ministers-See,Makrides v. Republic
(1983)3 C.L.R. 622. In that case, I annulled the appointment because of inadequacy of the enquiiy into the qualifications of theinterestedpartyand,thedefective exerciseofthe discretionary powers of the Public Service Commission. Counsel for Nico- 25 laides suggested that certain findings I made in that recourse, might makeit difficult for meto givethe matter fresh consideration. Counsel acknowledged, in answer to a question of the Court, that thefindings in question werenotfindings of credibility, either of the interested party, Makrides, or any witness. 30 Thefindings weTeconfined to the sufficiency of the enquiry into theeligibility oftheinterestedparty for appointment, inthe light oftheprovisions of the schemeof serviceand, theexercise of the discretionary powers of the Public Service Commission on the material before them. Myfindings rested on an objective view 35 of the procedure followed. Counsel informed the Court the appeal against my decision will be withdrawn because they .take theview,as Iwastold, that.thefilling ofthepostinquestion was not within the competence of the Public Service Commission. If this is theposition, they agree, it seems, with the outcome of 40 306 3 CL.R. Makrides v. Republic Pikis J. the first recourse, though seemingly for different reasons than those given in thejudgment of the Court. In the previous proceedings, no question of competence of the Public Service Commission had been raised. 5 For my guidance, counsel for the interested party referred me to the outcome of an application of the "Church of Scientology" before the English Court of Appeal, resulting in a decision of Lord Denning, M.R., to exempt himself from sitting in the appeal (see,reportin theLawTimeson 20.2.78)*. The learned 10 Judge expressed the view that ifthe litigant in the circumstances of that case would feel a little disturbed if he were to sit as a Member of the Court of Appeal, he thought it appropriate to excuse himself from participation in the case. Counsel for the applicants voiced the view that in previous litigation, Lord 15 Denning, M.R., "had somehow taken theviewthat 'Scientology' was not a religion and that the 'Church' was not entitled to call itself a 'church'." Apparently, the applicants had been parties to litigation before the Master of the Rolls on eight or nine previous occasions. In the words of their counsel, his clients felt 20 they should have a chance before some other division of the Court of Appeal. From the summary given in the Times, it is obvious none of the three Members of the Court of Appeal felt there existed grounds that justified in law the disqualification of Lord Denning. The decision of the learned Judge to step down 25 reflected his personal reaction in the particular circumstances of that case. Counsel for Makrides opposed the motion and invited the Court to deal with the caseasevery other casethat comes before the Court. Nothing said in the first case, he submitted, raised 30 anyobstacles or barriersto the Court tryingthiscase. Mr. Charalambous for the Republic, took a similar stand with Mr. Loizou and submitted there are no grounds whatever justifying my exclusion from the trial of the case. The principles on the subject of biasexpounded in Economides And Another v. The Police 35
(1983)2 C.L.R. 301, rule out bias having regard to what was decided in Makrides v. Republic
(1983)3 C.L.R. 622. The adjudication in that case, he pointed out, was strictly confined totheenquirythenunderconsideration and based onthematerial Ex parte Church of Scientology of California. 307 Pikls J. Makrides τ. Republic
(1984)produced before the Public Service Commission, in the first place and, the Courtin the process of judicial review. Onthe other hand, the decision of A. LoizouJ.inRazisAndAnother v. Republic
(1983)3 C.L.R. 309, clearly demonstrates there areno conceivable grounds disqualifying me from trying the present case. Headdedthatif Ielecttodisqualify myself,it is entirely a matter of peisonal choice. 5 Itooktimetoconsidertheapplicationbecauseofitsimportan ce and implications on the administration of justice. If my recollection is accurate,it is thefirst time I am faced with an 10 applicationof the kind,althoughonanumberof previousocca sions Ichoseto disqualify myselffrom sittingin a case,because Ijudged it appropriateintheinterestsofjustice. Ifelt nosuch inclination inthis case having regard to thenatureof theissues raised in the two proceedings and, theimplications of my deli- 15 Derationsinthefirst action. Ofcourse, thatisnoreasonfor not giving the matter the serious consideration it deserves. The' questionraisedhas,tomycomprehension,twoaspects. Firstly, the existence, if any, of grounds disclosing bias in law, that would automatically disqualify me, as a matter of law, from 20 sittinginthecase. Secondly,mypeisonal reactiontotheappli cation, posing a strictly subjective question. In accordance with what was decided in Economides, supra, I am notincom petent from resolving theissuemyself notwithstanding myper sonal involvement in the subject under consideration. The 25 decisioninEconomidesAndAnother v. ThePolice
(1983)2C.L.R. 301, is definitive of what amounts to bias in law. TheCourt dismissed the submission that the test of bias is related to the reactions of the litigant. Thereactionsof a fair minded person acquaintedwith thefacts of thecase,istheyardstick togo by in 30 determiningwhether aJudge shouldbedisqualified from sitting in a case. That is a proper test of general application. How ever,we took painstopointoutthatinasensitive area,suchas that of bias, it is imprudent to lay down an unbending rule admitting of no exceptions. 35 Γηresolvingquestions ofbias,therealities of Cyprus mustnot be overlooked - Theodorou v. ThePolice
(1971)2 C.L.R. 245, 258. Thefacts inEconomides, supra,demonstratethatbias isa substantive question. A Judge normally assigned for the trial of a case ought notto beexcluded except intheface of grounds 40 308 3 C.L.R. Makrides >. Republic Pikis J. giving rise to bias. Therefore, the Court dismissed the submis sion thattheJudge who gavetheremand order was incapacitated from sitting in the case on account of the fact he had earlier issued similar lemand orders. The nature of remand proceed5 ings and the judicial deliberations envisaged by the law, did not objectively p.edispose a Judge in any way that would make it improper for him to take cognizance of a new application for the remand of the same suspect in custody. Γη Vassiliades v. Vassiliades, XVIII C.L.R. 10, 21, the Supreme Court drew 10 attentiontothefact that aJudge in CypiUs,because of the smallness of the place, often has, from time to time, the same parties as litigants before him. That, in itself, is not a reason for dis qualifying oneself from assuming jurisdiction in the matter. The decision in Razis And Another v. Republic
(1983)3 C.L.R. 15 309, is clea- authority for the proposition that determination of a legal issue in the exe.cii« of revisional jurisdiction, does not preclude the same Judge fiom enteitaining the same or a similar legal question in a subsequent case. The learned trial Judge drew attention to the fact that "if a different view was 20 taken, 1 feel the.e would be hardy any Judges available to try cases, as time and again the same legal issues come up for deter mination by the Courts". I find myself, with respect, in full agreement with the decision in Razis and share the view that the list of Judges available for the trial of a case would soon 25 be exhausted if a different approach was adopted. One of the issues raised in the present proceedings, is that of resjudicata, a strictly legal question. If a matter is res judicata, as the principle is applied in administrative law. anyone Judge of the Court would be bound to apply the same principles and 30 come to the same conclusion. (The pnnciptes relevant to les judicata we.e ieviewed by the Full Bench of the Supreme Court η Pieris v. Republic
(1983)3 C.L.R. 1054). Counsel for Nicolaides explicitly stated the application is not based on the existence of any grounds giving rise to bias. 35 The submission is confined to a request on the part of his client that Istep down for, hewould feel more at ease if another Judge dealt with the case. I must put down that if the submission was that a c;>>cof possible bias arises from my participation in ihis case, I would be bound to dismus it as a matter of proper 309 Pikis J . Makrides \. Republic
(1984)application of the principles earlier referred to. No findings we.'e made in the first case, questioning either the veracity or the credibility of Nicolaides or of anyone else for that matter. Thejudgment of the Court rested on an objective view of the sufficiency oftheinquiryinto the qualifications oftheinterested 5 partyand thedefective exerciseofthepowersofthePublicService Commission in making their selection. And the case was decided by the application of the principles of administrative lawinrelation tothefindingsmadewithregardtothe sufficiency and propriety of the inquiry. Administrative review is prima- 10 rily intendedtoelicitanddeterminethelegalityofadministrative action. As counsel for the Republic submitted, the deliberations of the Court in the first case could not conceivably give rise to bias. The issues in the two proceedings are different. What isprimarily at issueinthepresent recourse,isthecompet- 15 enceoftheCouncil of Ministers totakethesubjudicedecision. a pure question of law. But I repeat in fairness to counsel for Nicolaides, they madeit abundantly clear, no legal grounds exist disqualifying me from trying the case. There remains to decide whether I should, in view of the professed unease 20 of Nicolaidesto pursuethecase before me,chooseto disqualify myself in the way Lord Denning choseto excuse himself from sitting in the case of the "ChurchofScientology". If I felt any constraint intrying the case because of anypredisposition on mypart in anydirection, arisingfrom myhaving 25 tried thefirstrecourse, I would feel dutybound to stepdown in theinterests ofjustice. But Ifeel no suchpredisposition. My judgment in the first action doesnot predispose meinanyway. I am not unmoved by the plea of a party that he would feel mo/e comfoitable to pursue his case before another Judge. 30 If the matter ended at that, I would not hesitate to step down butthatisnotthewholestory. Tomymind,aquestion ofprinciple of supreme importance is at stake: Should a Judge disqualify himself whenever a party feels that he would like to be tried by another Judge? Should I merely be swayed by my 35 sensitivity in the matter? I think not. I have a duty to cairy out. Myduty is to try every case that comes before mein the ordinary span of work. Idid not chooseto trythecase. Itwas assigned to me for trial by the system of rotation in force at the Supreme Court, whereby cases are assigned to Judges in 40 310 3 C.L.R. 5 10 15 20 25 Makrides v. Republic Pikis J. numerical order. After the assignment of the case to me in the absence of grounds in law disqualifying me from sitting in the case, I became the natural Judge in the cause, a term often used in continental law, to signify the Judge that is natural to try the case. The system practised at the Supreme Court with regard totheallocation of work, is designed to ensure animper sonal distribution of cases in the interests of the proper admi nistration of justice. Consequently, any decision on my part to step down inthatway, would upset thenaturalorder of things intheadministrationof justice, afactor of no mean consequence. As I perceive -my duty, in the absence of valid reasons dis qualifying me fiom sitting in the case, to excuse myself would be an abdication of duty. An abdication of duty with visible dangers to the administration of justice. One such danger is that we would be coming close to acknowledging to a litigant a right to choose the Judge who will tiy him. 1could neither condone such a practice nor shut off from my mind the reper cussions from any such decision. It is not permissible to be merely guided by sentiment. Thedecision must turnon aproper appreciation of my duty. In exercising this duty, Icannot over look there is a right of appeal from a decision of the Courtin revisional jurisdiction and,that an.appeal is by way of rehearing. In sum, there is no justification for .disqualifying or excusing myself from trying the case. 1am dutybound to try the,case andinexercise of that duty. Ishall givedirectionsfor itshearing. ν Orderaccordingly. 311