clr/1984/1984_3_677.pdf

(1)—Powers of "Governor"-now the Council of Ministers-then under—To make appointment to post of Re­ gistration Officer incompatible with Article 125.1 of the Consti­ tution—But said section canbe brought into conformity with the Constitition, as provided in Article 188.1 by reading "Public 15 Service Commission" for "Governor". Thi respondent Council of Ministers at its meeting of 13th October, 1983decided to appoint theinterested party to thepost of Registration Officer. The appointment in question was made in exercise of powers that allegedly vssted in the Council 20 of Ministers under section 3

(1)*of the Registration of Residents Law, Cap. 85 (as amended by Law 59/71). Upon a recourse by the applicants who were two of the un­ successful candidates to the above post: Held,

(1)that under the Constitution, competence to make 25 appointments and generally provide for the composition of the public service vests exclusively in a body separate and inde­ pendent of t h i executivebranch of government, styledthePublic Service Commission; that public service is denned by Article 122'of theConstitution in the widest terms and it includes 30 every office forming part of the. Civil Service of the State; that a comparison of the powers vested, on the one hand, to political offices of the State, the Council of Ministers and Ministers of the State, defined in Part III of the Constitution, with those entrusted to the Public Service 35 Commission, on the other, clearly suggests that the makers of Section 3

(1)provides that "the Council of Ministers may,by notice in the Gazette, appoint a Registration Officer". 678 3 C.L.R. 5 10 15 20 25 30 35 Makrides and Another v. Republic the Constitution intended toestablish a clear separation between the competence of holders of political office and the Public -Service Commission; that the assumption of competence by the political branch of government over the staffing of the civil service would inevitably compromise the impartiality of the service with corresponding loss of the faith of the public in its mission and efficacy; and that, therefore, the assumption of competenceandtheexerciseofpowerbytheCouncilofMinisters in relation to appointments in the public service is patently unconstitutional because it contravenes not only express provisions'of theConstitution butdefies theconstitutional framework as to the position, status and composition of the civil service; accordingly the sub judice appointment must be annulled.

(2)That though the present Public Service Commission was set up under the Public Service Law, 1967 (Law 33/67), which was enacted by virtue of the Law of necessity, and in order to bridge the gapcreated bythe departure of the Turkish members ofthePublicServiceCommission, setupunder theConstitution, legislation enacted in the name of necessity must not deviate beyond theextentstrictlywarranted bythenecessity and that the invocation of the doctrine is only justified in the interest of sustaining constitutional order; that in this case no suggestion hasbeen madethat any reasons whatever necessitated departure from the provisions of the Constitution with regard to the exclusivecompetenceof the Public'Service Commission to make appointments in the.public service and far less that any need arose to entrust such power to the Council of Ministers in de'fiance to constitutional order; and that,'consequently, theaction of the Council of Ministers, under-question in the present case, was unconstitutional and it was taken in excess of the powers of the Council of Ministers and in abuse of those'of the Public ISirvice Comnussion. Held,further,

(1)that to the extent that section 5 of Law 33/67envisages theentrustment of power to make appointments in thecivil serviceto bodiesother than the Public ServiceCommission,it must bereadandapplied subject tothe Constitution; and that any such body other than the Public Service Commissionmustbea bodyanalogoustothePublicServiceCommission functioning within the framework of the Constitution, 679 Makrides and Another v. Republic

(1984)separate and independent from the executive branch of government.

(2)The power that vested in the "Governor"—now the Council of Ministers—under section 3

(1)of Cap. 85 to make appointments to a post in the civil service was obnoxious to 5 the constitutional framework and incompatible with the provisions of Article 125.1 of the Constitution; that as such it ceased to have any effect upon the introduction of the Constitution and lapsed into oblivion; that the said section 3

(1)of Cap. 85 can be brought into conformity with the Constitution as 10 provided in Article 188.1 so as we could read "Public Service Commission" for "Governor"; that it is in this form that Cap. 85 survived the Constitution and as such fell to be applied by the Authorities of the State; accordingly the misinterpretation of Cap. 85 and misconstruction of its provisions is yet another 15 reason for annulling the decision. PerPikis,J.: I conclude bydrawing attention to the constitutional imperative that holders of political office should not, under any guise, take part in the manning of the civil service. The separation of political government from the civil service 20 is constitutionally entrenched. It is premised on the understanding that a civil service,immune from influence with regard to its composition from the holders of political office, can best discharge its mission. Amission trusting civil servantsto administer in thename of thelaw and serve the public impersonally. 25 Theallegianceofcivilservantsmust betotheStateasan organic entity and its democratic institutions. By sustaining constitutional order in this area, thecivil service ispledged to therule of law. This order of things, constitutionally ordained, will be undermined by attempts to institutionalize, as was done 30 inthiscase,participation ofpoliticalgovernment,intheselection of civil servants. It imports the risk of making the civil service subservient to the political government of the day and subject to political patronage. Such a departure from the Constitution cannot be countenanced except as unconstitutional, which is 35 precisely how I have countenanced it in this case. Subjudice decision annulled. Cases referred to: Makrides v. Republic

(1983)3 C.L.R. 622; Theodorides and Othersv. Ploussiou

(1976)3 C.L.R. 319; 680 40 3 C.L.K. 5 10 Makrides and Another v. Republic Hadjianastassiou v. Republic

(1982)3 C.L.R. 1173; Frangoulides v. Republic

(1966)3 C.L.R. 676; Attorney-General of the Republic v. Ibrahim, 1964 C.L.R. 195 Aloupas \. National Bank

(1983)I C.L.R. 55: Messaritou v. CyprusBroadcasting Corporation

(1972)3 C.L.R 100; Kazamiasv. Republic

(1982)3 C.L.R. 239: Solomou v. Republic

(1984)3 C.L.R. 533; • President of Republic v. Louca andOthers

(1984)3C.L.R. 241: Ekdotiki Eteriav. Λ>/«·έ·

(1982)2 C.L.R. 63. Recourses. 15 Recourses against the decision of the respondent to appoint the interested party to the post of Registration Officer in pieference and instead of the applicants. C. Loizou, for the applicants. Λ'. Charalambous, Senior Counsel of the Republic, with A. Vassiliades,for the respondent. Cur. adv. vult. PIKIS J. read the followingjudgment. A question of supreme 20 constitutional importance aflfecting the public service and its relationship to the executive branch of government, must neces­ sarily be decided in order to determinethe legality of an appoint­ ment made by the Council of Ministers in thepermanent govern­ mentestablishment. Relevant to thecase are also the provisions 25 of the Registration of Residents Law, Cap. 85*, that vested, in the contention of counsel for the Attorney-General, power in the Council of Ministers to make appointments to the post of Registration Officer. Recitation of the facts of the case defining the question will serve illuminate all aspects of the pro30 blem not least appreciate the implications of the action of the Council of Ministers. 35 The Public Service Commission in exercise of its powers appointed Christodoulos Nicolaides to the post of Registration Officer, a permanent post in governmental service provided for in the budget of the Republic. One of the unsuccessful candidates, namely, Costas Makrides, challenged the validity As amended by Law 59 of 1971 681 Pikis J. Makrides and Another \. Republic

(1984)of the appointmentdisputing the adequacy of theinquiry made into the qualifications of candidates as well as the soundness of its ultimate choice. The proceedings resulted in theannul­ ment of the decision*, not for lack of competence on the part oftheCommission,but becauseofdoubtsastothequalifications and suitability for appointment of Nicolaides. 5 There were question marks about the knowledge of Nico­ laides in English postulated as a necessary qualification for appointment. Surprising asitmayseem, soonafter thedecision, the Ministry of the Interiorasked thePublicService Commission Ιυ to appoint Christodoulos Nicolaides to the same post on an acting basis. (See letter of 18thJuly, 1983—exhibit 2(a)). The request was refused on account of the doubts raised respecting the qualifications of the suggested appointee (see letter of 29th July, 1983- exhibit 2 (b)). In the letter it is pointed out that 15 it is impermissible to make the suggested acting appointment before clarification of the position with regard to the qualifi­ cations of Nicolaides. An inquiry into his qualifications could be carried out in the process offillingthe post. It was the only proper course open to the Public Service Commission. 20 By a subsequent letter the Chairman of the Public Service Commission sought the opinion of the Attorney-General on the competenceof the Commission to make an appointment to the post of Registration Officer in view of the provisions of section 3

(1)of the Registration of Residents Law—Cap. 85* 25 that prima facie appeared to the Chairmanto vestcompetence in thematterin the Council of Ministers. If this was the effect of section 3

(1), the Chairman of the Commission observed it would be unconstitutionalinviewof theabsence of any power on the part of the Councilof Ministers, underthe Constitution 30 to make appointments to the public service (see letter of 9th August, 1983—exhibit 1(a) ). The Attorney-General replied that competenceinthemattervested intheCouncilof Ministers and advised accordingly. In the opinion of the AttorneyGeneral the competence of the Public Service Commission to 35 make appointments in the civil service was limited by thepro­ visions of section 5 of the Public Service Law—33/67, to posts thefillingof which was not regulated by any other law. So, • Makrides v. The Republic

(1983)3 C.L.R. 622 682 3 C.L.R. Makrides and Another v. Republic Pikis J. the Public Service Commission wasincompetent tofillthe post of Registration Officer, because competence to fill the post wasentrusted to another body by Cap. 85,that is,the Council of Ministers. The Attorney-General saw no constitutional 5 obstacle to the Council of Ministers exercising a competence with regard to appointments in the public service. (Seeexhibit 1(b), opinion of the ex Attorney-General, Mr. Criton Toinaritis, dated 10th August, 1983). At a subsequent stage the Attorney-General advised that the 10 Council ofMinistersinfillingthepostshould adopt aprocedure similar to that followed by the Public Service Commission in making appointments in thecivil service and suggested that the material bearing on the candidates, in the hands of the Public Service Commission, should be transmitted to the Council 15 of Ministers to enable them to make their decision. Also it was advised that the Minister of the Interior should abstain from takingpart inthedeliberations ofthe Council ofMinisters regarding the choice of the person to be appointed because of his relationship to one of the candidates (see exhibit 1(c) ). 20 Following the opinion of theAttorney-General, a submission was made to the Council of Ministers with a view to making anappointmenttothepostofRegistration Officer. TheCouncil of Ministers decided at its meeting of 13th October, 1983, to appoint Christodoulos Nicolaides, the interested party, to 25 the post of Registration Officer. The applicants were two of the unsuccessful candidates for appointment to the post of Registration Officer. One of them, namely, Makrides, was the litigant who successfully challenged the appointment of the interested party to the post made by 30 the Public Service Commission. They assert, inter alia, in their applications, that thedecision of the Council of Ministers is abortive for lack of competence to make the appointment. The action of the Council of Ministers is challenged as unconstitutional. 35 Theforemost issue in these proceedings is the competence of the Council of Ministers to take the disputed action. The prominence of the issue of constitutionality led the Court, on the application of the parties, to set it down for preliminary detennination. The first question that must be resolved con683 ϊ-ikis J. Makrides and Another v. Republic

(1984)cerns the constitutionality of the action of the Council of Mini­ sters in view of the express provisions of the Constitution on the subject and the constitutional structure of the powers of the State. A second question connected with the first, but ancillary thereto, is whether Cap. 85 does, in point of statute law, confer power upon the Council of Ministers to make appointments to the post of Registration Officer. Counsel for the applicants argued that the decision of the Council of Ministers was taken in excess of their constitutional powers. Further he contested the submission that the Registration of Residents Law vested power in the Council of Mini­ sters to make an appointmenttothe post of Registration Officer. 5 10 Counsel for the Attorney-General supported the legality of the action of the Council of Ministers warranted, in his con­ tention, by the provisions of Cap. 85 vaUdated by the necessity 15 that led to the enactment of the Public Service Law—33/67. The Public Service Commission, set up under Law 33/67, is ajuridical entity different from the Public Service Commission envisaged by the Constitution; and as such, if I grasped the argument correctly, not subject to its provisions. 20 Counsel for the respondents espoused the opinion of Mr· Tornaritis that there was no constitutional impediment to a law such as Cap. 85, assigning authority to the Council of Mini­ sters to make appointments in the public service. Further, it was submitted, some support for the proposition propounded 25 by the respondents could be derived from decisions of the Supreme Court, especially from the cases of Theodorides and Othersv. S. Ploussiou

(1976)3 C.L.R. 319, and Hadjianastassiou v. The Republic

(1982)3 C.L.R. 1173. Contemplating the implications of the submission made 30 on behalf of the Attorney-General, I inquired of counsel of the Republic whether the logic of the reasoning advanced in support of the decision does not inexorably lead to the proposi­ tion that competence may be entrusted by law to the Council of Ministers to make appointments, any number of them, 35 to any branch of the civil service. If this proposition is sound in law, it must mean that the order envisaged by the Constitu­ tion with regard to the civil service has languished. To my question I received no clear answer, I was merely reminded 684 3 C.L.R. Makrides and Another \. Republic Pikis J· that in proceedings under Article 146.1 the task of the Court is confined to theexamination of the subjudice decision. This, of course, should not stop a Court of law from debating the implications of a submission or drawing attention to repercus5 sions likely to flow from the acceptance of a given proposition. Counsel for the interested party adopted the position put forward by counsel for the respondents, but was more guarded in visualizing the implications of acceptance of the submission that it is in order to acknowledge competence to the Council 10 of Ministers to make appointments in the public service. The Council of Ministers and the Civil Service under the Constitution. Under the Constitution, competence to make appointments and generally provide for the composition of the public service 15 vests exclusively in a Body separate and independent of the executive branch of government, styled the Public Service Commission. A specific chapter of the Constitution underthat part providing for the establishment of offices of the State defines comprehensively the competence and powers of the independent 20 body to which competence vests over every matter relevant to the public service. Public service is defined by Article 122 of the Constitution in the widest terms. It includes every office forming part of the civil service of the State. A comparison of the powers vested, on the one hand, to poli25 tical offices of the State, the Council of Ministers and Ministers of the State, defined in Part III of the Constitution, with those entrusted to the Public Service Commission, on the other clearly suggests that the makers of the Constitution intendec to establish a clear separation between the competence of hold30 ers of political office and the Public Service Commission. Thi> separation was proclaimed by the Full Bench of the Suprem·· Court as a vital feature of constitutional order, intended t·· safeguard the public service from political influence—Charilao· Frangoulides v. The Republic

(1966)3 C.L.R. 676. An attemp' 35 made in that case by a Minister to assume the duties of a public officer was deplored and declared unconstitutional because it involved a constitutionally impermissible fusion of powers. Clearly the Constitution intended to distance thecivilservice 685 Pflds J. Makridesand Another τ. Republic

(1984)from the political branch of government, judged necessary in theinterestofthemissionofthecivilservice,principallyconsisting of a duty toenforce thelaws in a fair and impersonalmanner. The supremacy of the Law is in that way ensured laying the foundations for the rule of law. A civil service impersonally 5 dedicated to the service of thepublic is an invaluable asset for the well being of the country. The assumption ofcompetence by the political branch of government over the staffing of the civil service would inevitably compromise the impartiality of the service with corresponding loss of the faith of the public 10 in its mission and efficacy. The assumption of competence and the exercise of power by the Council of Ministers in relation to appointmentsin the public service is patently unconstitutional. It contravenesnot only express provisions of theConstitution butdefies theconsti- 15 tutional framework as to the position, status and composition of the civil service. The Law of Necessity—The Public Service Commission under Law 33/67. For the Attorney-General a two-fold argument was raised 20 in support of the decision founded on the law of necessity. First, the Public Service Commission set up under Law 33/67 is a body different from its counterpartunderthe Constitution. Second, the collapse of the Public Service Commission set up under the Constitutionbrought about by the departure of the 25 Turkish members of the Commission, led to the eclipse of the constitutionalbody providedfor by Article 124 of the Consti­ tution. Theonly similarity between theeclipsed Public Service Commission and thesynonymous body set up under Law 33/67 lies in their name. Both submissions rest on the premise that 30 the events making inert the constitutional organ or institution of the Public Service Commissionjustified theinvocation of the doctrine of necessity to theextent of legitimizing the enactment ofsection5ofLaw33/67makingthecompetenceoftheCommis­ sionset upthereunderdependentonthevestiture of competence 35 in relation to the public service to bodies other than thePublic Service Commission. And that, in the submission of counsel for the Attorney-General, included the Council of Ministers. The necessity to bridge the Rapaeafa.4 by the departure of 686 3 C.L.R. Makrides and Another v. Republic Pikis J. Turkish members of the Public Service Commission was judi­ cially recogrized in D. Theodorides& Others v. S. Ploussiou

(1976)3 C.L.R.

1. Nothing said in the above case lends sup­ port to the sweeping statement that the competenceof the Com5 mission set up under Law 33/67 should be any different from that of the Commission envisaged by the Constitution. On the contrary, the whole approach of the Court suggests that departure from the Constitution is only justified so far as neces­ sary by the events that neutralized the functioning of the Public 10 Service Commission. The Court was concerned to examine the justification of mechanism evolved to make functional constitutional institutions that ceased to operate because of the withdrawal of Turkish members. What was decided is that substitute mechanisms need not correspond in composition 15 to those envisaged by the Constitution fashioned to ensure participation of Greeks and Turks. There are powerful dicta that legislation enacted in the nameof necessity must not deviate from the Constitution beyond the extent strictly warranted by the necessity. In this spirit, and subject to these limitations. 20 Law 48/63 regulating, inter alia, appointments of personnel at the Central Bank, gained legitimacy in the necessitous circum­ stances created by theevents of 1963-
2. On the other hand, nothing was said to blur theeffect of the constitutionalcommand that political authoritiesshould have nothingto do with appoint25 ments in the public service. Another case cited in support of the case for the Republic is that of Hadjianastassiou v. The Republic

(1982)3 C.L.R. 1173. Here again Tiiantafyllides, P. took pains to ascertain whether deviation from the provisions of Article 124.6

(2)(c) 30 of the Constitution as to qualifications of members sanctioned by section 4

(5)of Law 33/67 was justified by the necessity lead­ ing to the enactment of Law 33/67. Thus suggesting that the legitimacy of the provisions of Law 33/67 must be tested by reference ίο the Constitulion and the necessity invoked to justify 35 departure therefrom. 40 In the leading case of the Attorney-Generalof the Republic v. Mustafa Ibrahim, 1964 C.L.R. 195, acknowledging the exist­ ence of circumstances justifying recourse to the exceptional juridical measure of necessity, it is made clear that invocation of the doctiine is only justified in the interest of sustaining 687 1'ikis J. Makrides and Another i. Republic

(1984)constitutional order That is, to improvise machinery in order to make possible the functioning of institutions provided for by the Constitution made inert by the withdrawal of Turkish members whose participation was postulated as necessary by the Constitution. And in that way prevent, in the interest of 5 social order, the thicatened collapse of vital constitutional organs of the State. The principles underlying the decision in Ibrahim were reaiFnmed by the Full Bench of the Supreme Court in Aloupas v. National Bank

(1983)1 C.L.R. 55. As 1 had occasion to 10 explain, the doctiine of necessity is not a means of supplanting, but reinforcing the rule of law, in the interest of social order. The law of necessity is not. as indicated, antagonistic to the rule of law,but ameanscf underpinning. Then itwas observed: " The Judiciary ischarged to ensure that themeasures 15 taken arc a genuine response to a necessity and, further, thai they go no further than the necessity wairants. Judicial control is a hedge against arbitrary invocation of necessity as a justification for legal measures, as well as a hedge against abuse of necessity by taking measures uncalled 20 for by the necessity (p. 78, Aloupas (supra) ) Ttiantafyllides, P., who expressed the majority view on the subject, put the matter in this perspective (p. 64): "Of course, resort to any legislative measures, as aforesaid, is and should, always, be subject to judicial control 25 so as to ensure that such measures are justified by the calamity in relation to which they have been enacted". Hadjianastassiou, J. shared the view that the doctrine of necessity aims to serve and not defeat the rule of law and measures taken inthat direction remain subject tojudicial control 30 in order to ward off the possibility of abuse. In Rita Messaritou v. The Cyprus Broadcasting Corporation

(1972)3C.L.R. 100,A. Loizou, J., emphasized that the doctrine of necessity is primarily concerned with the filling of the operational vacuum in therunning ofessential institutions of the State. 35 Its invocation isjustified if the aim istofillthe gap by setting up substitute mechanisms to make constitutional organs operational. 688 3 CL.lt. 5 10 15 20 25 30 35 Makrides and Another v. Republic Tikis Λ Judicial pronouncements in a number of recent cas;s strong!) suggest the Public Seivice Commission provided for by Law 33/67 is a substitute for the Public Service Commission envisaged by the Constitution and consequently a body with identical competence. In Kazamias v. The Republic

(1982)3 C.L.R 239, Savvides, J., dismissed the suggestion that disciplinarj power over civil servants could be exercised except by thePublic Service Commission and then subject to its competence as defined in the Constitution. Hence he struck down as illegal the assumption of power by the Council of Ministers to exercise. be it indirectly, disciplinary control over public officers undei the provisions of sections 6(f) and 7 of the Pension Law, Cap. 331 (as amended). Guided by similar considerations, Ipointed out in loaiuiis Solomon v. The Republic* that there can be no departure from the Constitution with regard io the competence or powers of the Public Service Commission except to the extent strictly necessary to enable constitutional organ* to carry out the functions entrusted to them by the Constitution (Decision given on 29th Maich, 1983, not yet published). More consequent still are observations made in the ciue 77)·.' President of the Republicv. Yiannakis Loitca& Others(delivered on 21st March. 1984, not yet published)**. There are powerful dicta that the authorities of the State must re-examine the provisions of section 4

(3)of Law 33/67 in view of, as one may surmiie, their apparent conflict with constitutional provisions on security of tenure of members of the Public Service Commission (see the con­ cluding observations in the judgment of A. Loizou. Savvides and Stylianides, JJ.). In my dissenting judgment, not on the above points, I was more explicit on the nc^d to fashion the provisions of section 4

(3)of Law 33/67 to conform with iruprovisions of Article 124.5 of the Constitution. No suggestion has been made in this case that any reason whatever necessitated departure from the provisions οί the Constitution with regard to the exclusive competence ol' the Public Service Commission to make appointments in the public service and far less that any need arose to entrust such puwer to the Council of Ministers in defiance to constiiution.il order Consequently, the action of the Council of Ministers, under Now reported in

(1984)3 C.L.K. 5.1J Mow reported in

(1984)3 C L.R. 241 689 Pikis J. Makrides and Another v. Republic

(1984)question in the present case, was unconstitutional. It was taken in excess of the powers of the Council of Ministers and in abuse of those of the Public Service Commission. To the extent that section 5ofLaw 33/67envisagesthe entrustment of power to make appointments in the civil service to 5 bodies other than the Public Service Commission, it must be read and applied subject to the Constitution, Any such body other than the Public Service Commission must be a body analogous to the Public Service Commission functioning within the framework of the Constitution, separate and independent 10 from the executive branch of government. As indicated in Ekdotiki Eteriav. Police

(1982)2C.L.R. 63,the legislature must be presumed to legislate within the constitutional framework and not outside it. Only when thisfundamental rule of construction cannot be reconciled withthewording of statute, should 15 the Court conclude there is a violation of the Constitution and make an appropriate declaration of unconstitutionality. In the absence of facts founding necessity to legislate in deviation of the provisions of the Constitution respecting the competence of the Public Service Commission as well as the 20 constitutional framework instancing holders of political office from the manning of the civil service, the purported exercise of competence by the Council of Ministers in relation to the appointment of Registration Officer was wholly abortive. It could not be countenanced except as a decision taken in 25 excess of the powers of the Council of Ministers and in abuse of those of the Public Service Commission. The Registration of Residents Lawy Cap. 85—Applicability after introduction of the Constitution. Irrespective of objections to the assignment of competence 30 to the Council of Ministers, under any guise, to make appointments in the public service, there is yet one more objection to the validity of the appointment under consideration. It is this: The law under wl 4i power was claimed to make the disputed appointment did notentrust, assuggested, suchauthoi- 35 ity to the Council of Ministers. Cap. 85 was enacted before independence. Its validity after independence depended on its compatibility with the provisions of the Constitution in thefirstplace and in theevent of incompatibility on the amenity 690 3 C.L.R. Makrides and Another v. Republic Pikis J. to streamline its provisions in order to bring it into conformity with the Constitution. Therefore, thepower that vested in the "Governor" to make appointments to a post in the civil service was obnoxious to 5 the constitutional framework and incompatible with the provisions of Article 125.1 of the Constitution. As such it ceased to have any effect upon the introduction of the Constitution and lapsed into oblivion. Upon that a second question arises whether bynecessary modification it could bebroughtintocon10 formity with the Constitution, as provided in Article 188.1. Theamenitytomakesuchadjustment discernibleontheexamination of the provisions of the individual statute is a question fortheCourts. Theanswer,here,isintheaffirmative. Without thwarting its fabric, we could read "Public Service Commission" foi "Governor". Jt is in this form that Cap. 85 survived the Constitution and as such fell to be applied by ihe authorities of the State. The amendment of Cap. 85 by virtueof the provisions of section 2(a) of Law 59/71 could have no effect upon the provisions of section 3

(1)in itsmodified form, unless, of course,we are to presume that the legislature intended to cast Cap. 85 afresh in a manner offending the Constitution. This is not atallanecessaiycorollaryfoi theamendmentwasconsequential in relation to the application of other aspects of Cap. 85, for example, section 5

(2)(a)ofthe law; ensuring thereby that members of the Council of Ministers were exempted from the duty to register under the provisions of the law. The misinterpretation of Cap. 85 and misconstruction of its provisions is yet another reason for annulling the decision. 1 conclude by drawing attention to the constitutional imperativethat holdersofpolitical office should not, underanyguise, take part in the manning of the civil service. The separation of political government from the civil serviceis constitutionally entienched. It is piemised on the understanding that a civil seivice, immune from influence with regard to its composition 35 from theholdersofpoliticaloffice, canbestdischargeitsmission. A mission trusting civil servants to administer in the name of the law and serve the public impersonally. The allegiance of civil servants must be to the State as an organic entity and its 30 691 Pikis J. Makrides and Another v. Republic

(1984)democratic institutions. By sustaining constitutional order inthisarea, thecivil serviceispledgedtothe rule oflaw. This order of things, constitutionally ordained, will be undermined by attempts to institutionalize, as was done in this case, participation of political government, in the selection of civil ser- 5 vants. It imports the risk of making the civil service subservient to the pohtical government of the day and subject to political patronage. Such a departue from the Constitution cannot be countenanced except as unconstitutional, which is precisely how I have countenanced it in this case. 10 The decision is annulled. Let there be no order as to costs. Subjudice decision annulled. No orderas to costs. 692