3 C.L.R. 1984 July 6 [L. Loizou, J.] IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION THE DHALI HOGS BREEDING LTD., Applicant, v. THE REPUBLIC OF CYPRUS, THROUGH THE COUNCIL OF MINISTERS AND OTHERS, R
Article 146of the Constitution and must, therefore, be dismissed. Application dismissed. Cases referred to: PA.SY.D.Y. v. Republic
(1978)3 C.L.R. 27; • Ioannou v. E.A.C.
(1981)3 C.L.R. 280; Papaphilippou v. Republic, 1 R.S.C.C. 62; Theodoridou and Others v. Republic
(1965)3 C.L.R. 41; Demetriades v. Republic
(1969)3 C.L.R. 557; Police v. Hondrou, 3 R.S.C.C. 82; Phiiippou and Others v. Republic
(1972)3 C.L.R. 123; Apostolides v. Republic
(1982)3 C.L.R. 928 at p. 936; Mikrommatis v. Republic, 2 R.S.C.C. 125; Kyriakides (No. 2) v. Council for Registration of Architects and Civil Engineers
(1965)3 C.L.R. 617; Matsis v. Republic
(1969)3 C.L.R. 245; Evlogimenos and Others v. Republic, 2 R.S.C.C. 139 at p. 142; Antoniades and Others v. Republic
(1979)3 C.L.R. 641; Voyias v. Republic
(1974)3 C.L.R.
- Recourse. 20 25 30 35 Recourse for a declaration that the provisions of para. 7 of Order N o . 169 of the Council of Ministers published in Supple906 3 C.L.R. Dhali Hogs v. Republic ment No.3 of the Gazetteof the 22nd September, 1972 are null and void and of no effect whatsoever. 5 A. S. Myrianthis, for the applicants. CI. Antoniades, Senior Counsel of the Republic, for the respondents. Cur. adv. vult. L. Loizou J. read the following judgment. The applicants, a limited liability company, by this recourse pray for the following relief: 10
- A declaration of the Court that the provisions of para. 7 of Order No. 169of the Councilof Ministerspublished in Supple ment No. 3tothe Gazetteof the22nd September, 1972, are null and void and of no effect whatsoever.
- A declaration of the Court that the said provisions of the 15 Order of the Council of Ministers, in so far as they affect the applicant company and/or its business and/or its industry are null and void and of no effect. Para. 7 of Order 169 reads as follows: 20 25 30 "
- Ή κλάσις ύπ' άρ. 35 τοϋ ΤετάρτουΠϊνακοςτοΰΝόμου, δια τοϋ παρόντος τροποποιείται διά της διαγραφής των λεπτομερειών εξαιρέσεως των αναφερομένων έναντι της τοιαύ τηςκλάσεωςέντη δευτέρα στήλη τοΰένλόγω Πίνακοςκαΐτης άντικαταστήσεως τούτων δια των ακολούθων: "Υλικά (εξαιρουμένων τών υλικών συσκευασίας) προς ΧΡήσιν ^ν ""3 αεροστεγή έγκυτιώσει (canning) εντός μεταλλίνωνδοχείωνκρέατοςη" παρασκευασμάτωνκρέατος τών κλάσεων 16.01-16.03'". ("Class No. 35 of the 4th Schedule to the Law is hereby amended by the deletion of the details of the exemptions appearing opposite the said class in the second column of the said Schedule and their substitution by the following: 'Materials (except packing materials) for use in the vacuum packing (canning) in metal containers of meat and meat preparations of theclass 16.01-16.03)*". 35 The applicant company was formed and registered in Cyprus since 1948 carrying on the business of manufacturers of pre served meat and meat preparations. According to the evidence 907 L. Loizou J. Dhali Hogs v. Republic
(1984)of the Chairman of its Board of Directors its products consist of frankfurters, "sausages, salami, mourtatella, bacon, ham, smoked ham and luncheon meat which are packed in air-sealed plastic containers. On the 13th February, 1970, an Order made by the Council 5 of Ministers under the provisions of s.l2
(2)of the Customs and Excise (Duties and Drawbacks) Laws, 1967-1972 was published in Supplement No. 3 to the Gazette under Notification 118 by virtue of which materials imported for the production of pre served meat and meat preparations were relieved from import 10 duty. The relevant part of this Order is class 35 which was added tothe4th Schedule of the Law and which reads as follows: "35 Καρυκεύματα(της κλάσεως 21.04.90), εκχυλίσματα κρέα τος (της κλάσεως 16.03) και προϊόντατης κλάσεως 35.04.90, προς χρήσιν ε!ς την κονσερβοποιΐαν κρέατος καΐ παρασκευα- 15 σμάτων κρέατος." ("Seasonings (of class 21.04.90), meat extracts (of class 16.03) and products of class 35.04.90, for use in the pre servation of meat and meat preparations"'.) Thereafter the applicants were importing the above materials free of duty until some time in 1971 when the Customs Autho rities, being of the opinion that item 35 applied only to materials imported for the canning of meat and meat preparations, dis continued the relief. 20 As a result the applicants filed recourse No. 312/71 challeng- 25 ing respondents' refusal to allow relief from import duty with regard to certain specific consignments of thearticles in question imported by them. That recourse was settled and the respon dents refunded to the applicants the import duty paid by them under protest. 30 As stated above on the 22nd September, 1972, the Council of Ministers amended class 35 of the 4th Schedule with the result that therelief was restricted only to materials imported for use in the air-tight packing of meat and meat preparations of the classes mentioned therein, in metal containers. As a result the applicants filed the present recourse challeng ing the validity of the Order in question. The recourse is based on the following grounds of law: 908 35 3 C.L.R. Dbali Hogs v. Republic L. Loizou J.
- The aforesaid provisions which are challenged by the present recourse create unequal treatment and are contrary and/or incompatible with the provisions of Article 28 of the Constitution which provides, inter alia, for equal treatment. 5
- The above provisions cause financial ruin of the business and/or industry of the applicants and/or will result in the hindrance of the exercise of the business of the applicants, which exists for many years, contrary to the provisions of Articles 23 and 25 of the Constitution. 10
- By the aforesaid Order and/or provisions the Council of Ministers exercises legislative powers contrary to Articles 54 and/or 61 of the Constitution.
- In any event the said provisions were made in excess of powers and/or are arbitrary, unjust, unreasonable and/or un15 constitutional and/or were reached without the previous due consideration of the matter. In the course of the hearing counsel for the applicants abanoned the third ground and stated that he will confine his case only on grounds 1 and
- 20 Before proceeding any further I consider it appropriate and necessary to examine, ex proprio motu, another point which goes to the jurisdiction of the Court. The point is whether a recourseagainst theOrder ofthe Council of Ministers assuch is amenable to the
Article 146of 25 the Constitution.
Jurisdiction to try recourses is vested in the Supreme Court by virtue of Article 146.1 of the Constitution which reads as follows: 30 35 " 1 . The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any executive or administrative authority iscontrary to any of the provisions of this Constitution or of any law or is made in uxcess or in abuse of powers vested in such organ or au;imnty or person." It is clear from the wording of this Article that the iiecision, act or omission must be that of an organ authority or person 909 L. Loizou J. Dhali Hogs v. Republic
(1984)exercisingexecutiveoradministrativeauthority. Itis,therefore, for consideration whether the subjudice order oftheCouncilof Ministers comes within the abmit of Article 146 and more particularly whether the order in question was made by the Council of Ministers in the exercise of its executiveoradrnini- 5 strative authority or whether it isan act of a legislative nature. The Supreme Court hastreated, in a number ofcases,certain acts of the executive to be of a legislative nature. Thus, the approval of schemes of service by the Council of Ministers has been held to be in the exercise of its legislative powers (see for 10 instance the cases of Pankyprios Syntechnia Dimosion Ypallilon andOthers v. TheRepublic
(1978)3 C.L.R. 27; and Ioannou v. TheE.A.C.
(1981)3C.L.R.280). InthecaseofPapaphilipott v. TheRepublic, 1R.S.C.C.62it washeld that an omission on the part of the Council of Ministers to consider a bill to be 15 introduced tothe Houseof Representatives wasnot anomission inthesenseoftheexerciseofexecutiveoradministrativeauthoritybutanactpreparatorytoalegislativeactandthusnotamenable to a recourse under Article 146. Likewise in the case of Theodoridou and Others v. TheRepublic
(1965)3 C.L.R. 41 a 20 claim by widows of public officers who werecontributors to the Widows and Orphans Pension Fund against the failure of the Republic to apply the balance provided by section 5(d) of the Widows and Orphans Pension Fund (Special Provisions) Law, 1962to the benefit of the applicants and othei persons entitled 25 under the fund was held to amount to a complaint against an alleged legislative omission and wasnot, therefore, entertainable under Article 146. In the case of Demetriades v. The Republic
(1963)3C.L.R. 557(a FullBenchcaseonappealfrom thejudgment of a JudgeofthisCourt)it washeldthat a decisionof the 30 Minister of Health not to amend the Second Schedule of the Pharmacies and Poisons Law,Cap.254so as toinclude certain itemsin it amounted to an exercise of legislativepower and not to a decision or act "of any organ, authority or personexercising executive or administrative function" within themeaning of 35 Article 146oftheConstitution. FinallyinthecaseofPolicev. Hondrou, 3 R.S.C.C. 82 an Order of the Council of Ministers provided that the handling or the putting into operation of a gaming machine, as defined in the said Order, shall be a game for thepurposesofs.6(l)oftheBettingHouses,GamingHouses 40 910 3 C.L.R. ' Dhali Hogs v. Republic L. Loizou J. and Gambling Prevention Law, Cap. 151. That Order was made by the Council of Ministers under s.6
(2)which provides that "the Council of Ministers may, by Order, declare any game to be a game for the purposes of sub-section
(1)of this section 5 in addition to the games specified therein ". It was held at p. 85 that: 10 "There can be no doubt that the exercise of such power as the making of an Order under sub-section
(2)is the exercise of 'legislative power* in the accepted sense of that term in Constitutional Law." This case has been cited with approval and followed by the Full Bench in the Demetriades case (supra). In this respect useful reference may also be made to the judg ment of Triantafyllides, P. in the case of Pankyprios Syntechnia 15 Dimosion Ypallilonv. The Republic (supra) where at pp. 30-31 a distinction is made between the position in Greeceand Cyprus as to the test applicable with regard to thejurisdiction concern ing administrative recourses. Reverting now to the present case, the sub judice Order was 20 made by the Council of Ministers in the exercise of the powers vested in it by s.l2
(2)of Law 81/67 which reads as follows: ~„ -« .. ''
(2)Δια Διατάγματος αΰτοΰ Βημοσιευθησομένου έν Tfj έττισήμωέφημερίδιτης Δημοκρατίας,τό Ύττουργικόν Συμβούλιον δύναται νά προσθετή, διαγραφή, μεταβάλλη ή άλλως τροττοποιη τάς κλάσεις ή οίασδήττοτε τούτων, ώς αδται εκτίθενται τ φ συνημμένω τ φ παρόντι Τετάρτω ΤΤΙνακι." ("The Council of Ministers may by order published in the Official Gazetteof the Republic add, delete, vary or otherwiseamend theclasses or any of them as set out in the 4th Schedule hereto".) Given that Law 81 of 1967 is a legislative enactment and s.l2
(2)is an enabling section conferring on the Council of Ministers powers to add, delete, vary or amend a specific part of that law, any addition or amendment should also be con sidered as,part of the law; and consequently the sub judice order of the Council of Ministers should be treated as an act of legislation being effected by the Council of Ministers in the 911 L. Loizou J. Dhali Hogs v. Republic
(1984)exercise ofthe powersconferred onit by s.12
(2)of thelawin the form of delegated legislation. In my view the decision in the present case is analogous to that of the cases of Hondrou and Demetriades (supra). In the light of the above cases there is no doubt that the 5 aforesaid order was made in the exercise of legislative powers delegated to the Council of Ministers and cannot be challenged by a recourse as such under the provisions of Article 146. Of course, as it has been held by this Court in a number of cases, a legislative provision may be challenged as to its validity 10 or constitutionality, indirectly, by a recourse made against an administrative act or decision which is based on such legislative provision. (See in this respect Philippou and Others v. The Republic
(1972)3 C.L.R. 123). In the more recent case of Apostolidesv. The Republic
(1982)3C.L.R. 928 Pikis,J. had this 15 to say at p.936: "The revisional jurisdiction of the Supreme Court is not the forum for a review of the constitutionality of laws in abstracto. Litigants cannot move the Supreme Court to exercise its revisional jurisdiction for the challenge of the 20 constitutionality of laws. Issues of constitutionality may be determined incidentally, if necessary, for the purpose of adjudicating upon the propriety of an act, decision or omission of organs of public administration." The present recourse challenges directly the order of the 25 Council of Ministers as such and not through any specific administrative act. In fact going through therecord one cannot discern any particular administrative act that could bechallenged by this recourse and it is not even clear whether the sub judice order was ever applied at all by the respondents with regard to 30 the importation of any materials by the applicants at any time after its enactment and before the recouise was filed. Having already decided that the order challenged by this recourse is of a legislative nature, I find, on the basis of the foregoing, that this recourse being directed against the order 35 itself and not through an administrative act is not amenable to the
Article 146of the Constitution and must, therefore, be dismissed.
912 3 C.L.R. Dhali Hogs v. Republic L. Loizou J. Although this disposes of the case, I propose, nevertheless to deal very briefly with the remaining grounds of law 1and 2 based on Articles 28 and 23 and 25 of the Constitution respectively. 5 10 15 20 25 With regard to the first ground it was applicant's case that because another company in Cyprus, Viagrex, which manufactures, inter alia, products similar to those manufactured by the applicant company, packed two of their products i.e. luncheon meat and ham in tins, whereas the applicants placed those products in plastic containers, the Order, the validity of which is challenged, is discriminatory in that with regard to these two products the two companies are not treated on an equal basisbecause relief from the import duty isallowed, under theprovisions of the Order, only for the products packed in tins. The short answer to this ground is that what Article 28 safeguards is equality among persons and things similarly circumstanced. In other words it may be said generally that the equality envisaged by Article 28 means that the rights of all persons must rest upon the same rule under similar circumstances. There is a wealth of authority with regard to this Article. (See, inter alia, Mikrommatis v. The Republic, 2 R.S.C.C. 125; The Republic v. Arakian
(1972)3 C.L.R. 294; Kyriakides (No.2) v. The Councilfor Registration of Architects and Civil Engineers
(1965)3 C.L.R., 617 and Matsis v. The Republic
(1969)3 C.L.R. 245). Nothing that has been said in the present case supports the view that the classification of the items entitled to relief from import duty by Order 169 is arbitrary or unjustified; and the mere fact that the other manufacturers who place two of their 30 products in tin containers are reheved from import duty with regard to such products whereas the applicants who place them in plastic containers are not, is not a ground for saying that the Order is unconstitutional on the ground of discrimination. And it must not be lost sight of that the issue in this recourse 35 relates to taxation legislation and that a wide discretion is allowedinmattersregardingclassifications for taxation purposes. Equally without foundation is the second ground. Article 23safeguards the rightto acquire, own, possess,enjoy or dispose of any movable or immovable property and protects such right 913 L. Loizou J. Dhali Hogs v. Republic
(1984)from State interference except asprovided in paragraphs 3and 4 thereof. In Evlogimenos and 2 Othersv. The Republic, 2 R.S.C.C. 139 at p. 142 it is stated: "Further, the Court in examining the provisions of Article 23 of the Constitution has proceeded on the well-settled 5 principle that the right to property safeguarded by an Article such asthisisnot arightin abstracto but arightas defined and regulated bythelawrelating tocivillawrights in property and the word 'property1 in paragraph 1 of Article 23 has to be understood and interpreted in this 10 sense. Paragraph 2 of Article 23,in the opinion of the Court protectstheaforesaid right of propertyfrom deprivation or restriction or limitation effected in the interest of the State or public bodies and not merely under a law regulating 15 civil law rights in property." Article 25,ontheother hand, safeguards theright to practice anyprofession or tocarry onanyoccupation, tradeorbusiness. It doesnot seem to methat this Article isat allrelevant asthe Order challenged by this recourse does not restrict such right 20 anddoesnot,therefore, comewithintheambitoftheprovisions of the Article which does not purport to safeguard anyrightto relief from taxation. (See Antoniades and Othersv. TheRepublic
(1979)3 C.L.R. 641 and Voyias v. TheRepublic
(1974)3 C.L.R. 390). 25 As stated above this recourse fails and it must be dismissed. There will be no order as to costs. Recoursedismissed. Noorder astocosts. 914