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(1984) 1984 August 21 [PIKIS, J.] IN THE MATTER OF ARTICLE 146OF THE CONSTITUTION NTCOS VAKIS, Applicant, v. THE PUBLIC SERVICE COMMISSION, Respondents. (Case No. 199/83). PublicOfficers—Schemes of se

the Constitution—Economides v. Republic

(1973)3 C.L.R. 410 followed. Preliminary to inquiring intothemeritsofthecasethefollowing question of law was set down for determination: 5 Is publication of a scheme of seivice a necessary condition for its validity? Held, that thereispower in Article 57.4of theConstitution to dispensewith the publication of a scheme of service(decision of the Full Bench of the Supreme Court in Economides v.Republic 10
(1973)3C.L.R. 410followed, in view of the doctrine of binding precedent which makes decisions of hierarchically superior Courts binding, notwithstanding the reservations of the Court about its correctness.) PerPikis, J.: This is not to suggest that the Council of Ministers 15 should be encouraged in its practice to withhold publication of schemes of service. Soon after the establishment of the Cyprus Republic, the Supreme Constitutional Court indicated that it is desirable that schemesof serviceshould bepublished for general information. With thisapproach, Iamwhollyinagreement for 20 it is to everybody's interest that schemes of service should see light as soon as theyareapproved. Publication makesfor open government - highly conducive to a sound Administration. Order accordingly. 952 3 C.L.R. 5 10 Vakis v. Republic Cases referred to: Economides v. Republic
(1973)3 C.L.R. 410; Police v. Hondrou, 3 R.S.C.C. 82; Papapetrou v. Republic, 2 R.S.C.C. 61; PA.SY.D.Y. v. Republic
(1978)3 C.L.R. 27; Ploussiou v. Central Bank of'Cyprus
(1983)3 C.L.R. 398; Arsalides and Another v. CY.T.A.
(1983)3 C.L.R. 510; Republic v. Demetriades
(1977)3 C.L.R. 213; Ogden Industries Pty Ltd. v. Loucas [1969] 1 All E.R. 121; Miliangos v. George Frank (Textiles) Ltd. [1975] 3 All E.R. 801 at p. 803; Baker and Another v. The Queen [1975] 3 AH E.R. 55; hhin v. Republic, 2 R.S.C.C. 17. 15 20 Recourse. Recourse against the decision of the respondent to ,promote the interested party to the post of Senior Agricultural Research Officer in preference and instead of the applicant. A. Panayiotou, for the applicant. N. Charalambous,Senior Counsel of the Republic, for the respondent. Cur. adv. vult. PIKIS J. read the following judgment. Preliminary to inquiring into the merits of the case, a question of law of some importance affecting the substratum of the decision was, on the 25 application of counsel, set down for determination: Is publication of a scheme of service a necessary condition for its validity? If the answer is in the affirmative, the decision must be swept aside for, the scheme of service, on the basis of which the sub 30 judice decision was taken, was not published. The opposing submissions can with benefit be reduced to the following rival propositions: Applicant contends the scheme of service is invalid for lack of promulgation in the Gazette; publication is a condition of the validity of every law and, in the 35 submission of counsel for the applicant, it is expressly required by s.86(l) of the Public Service Law - 33/67, providing foi the publication of every Regulation made by the Council of Mi953 Pikis J. Vakis v. Republic
(1984)nisters in furtherance to the objects of the law. Inasmuch as the decision was founded on a void Regulation, it is likewise void, as well as everything flowing therefrom. For the Republic it was submitted that notwithstanding the legislative character of a scheme of service, publication in the 5 Gazette may be dispensed with in accordance with the express provisions ofpara.4ofArticle 57of the Constitution, asauthoritativelyinterpreted by the Full Bench of the Supreme Court in Economides v.Republic
(1973)3C.L.R.
  1. And inviewof the decision of the Council of Ministersto withhold publication 10 of the scheme of service under consideration, absence of publication left its validity unaffected. Counsel for the applicant rejoined that the application of the dispensing provisions of para. 4 is limited to decisions of a non legislative character. He drew a distinction in this respect between decisions of the 15 Council of Ministers under Articles 54and 57 of the Constitution, respectively. I took time to consider the issue raised, considering its importance and far reachingimplications. Havingsurveyedthe juridicalnatureofaschemeofserviceandcaselawonthesubject, 20 I have come to the following conclusions: A scheme of service is, because of its character and content, a piece of legislation, both in principle and on authority. "Legislative" is every act that prescribes rules of law. The hallmark of these rules lies in the universality of their application 25 and impersonal character and exposition. They are contrasted with acts of application or implementation of the law, detailing the rights of individuals under the law, either personally, collectively or locally. Rules oflaw,on theother hand, refer toa genus or category of things objectively discernible. They are 30 impersonal in that their application is dependent on the existence of a state of things at the time of their application.l Despite the doctrine of separation of powers that underlines the allocation and exercise of State power under the Constitution,theHouseofRepresentativesisnotthesolelaw-making 35 body,although it isthe power that retainsultimate controlover
  2. See, Dagtoglou—General Administrative LawA, 1977, pp. 54-59 and 72-73; Sgouritsas—Constitutional Law, Part B, 1964, p.
  3. 954 3 C.L.R. Vakis v. Republic Pikis J. legislation - See, Police v. Hondrou, 3 R.S.C.C.
  4. The exercise of legislative power may bedelegated by the House of Representatives to another body or it may be vested, as in the case of schemes of service,-by the Constitution to the executive 5 branch of Government (Article 54(a)and (d)). It isevident from Papapetrou v. Republic, 2 R.S.C.C. 61,that legislative power can be exercised by the Council of Ministers for the promotion or implementation ofexecutive policy. Theciiterion for theclassification of an act as legislative, is not a formal one, that is, its 10 source of origin, but a substantive one, its content. In Pankyprios Syntechnia Dimosion Ypallilon v. Republic
(1978)3 C.L.R. 27, the Court pronounced that a scheme of service, is, for reasons similar to those propounded by Greek Courts, an act of legislation. Thus,the consensus of counsel on the matter 15 is well founded. A scheme of service, it must be said, aims to establish legal norms at public law previously inexistent. The genesis of these rules does not derivefrom the application of the provisions of any other law, but stems from the exercise of the rule-making power that vests under the Constitution, in the 20 Council of Ministers. The rules are general in content, articulated by reference to the needs of the Public Service. Both under the Constitution and general principles of law, publication of legislation is a condition of its validity. Article 82of the Constitution categorically provides that every law shall 25 be published. Not only publication is mandatory under the Constitution, but the accrual of rights and imposition of duties is dependent on the date of the promulgation of the law in the Gazette, unless another day is set froth in the lawitself. Publication is the final indispensable requisite for the genesis of a 30 law. Our Statute Law as well,embodying in this regard fundamental principles of English law, envisages the publication of every law as a condition precedent to its validity. As s.7 of the Interpretation Law -Cap. 1 makesclear, publication is necessary for every piece of legislation, whether primary or secondary. 35 In Ploussiouv. The CentralBank of Cyprus
(1983)3C.L.R. 398, I noticed at some length the effect of Article 82 of the Constitution and s.7 of the Interpretation Law, and debated the implications of the wider principle involved*. The enactment of laws without publication would corrode the principle that * Note, Arsatiaes and Another v. CY.T.A.
(1983)3 C.L.R. 510. 955 Pikis J. Vakis v. Republic everybodyisdeemedto knowthelawand, moreimportant still, it would underminetheright of the public to control legislation enacted initsname. Speakingof schemesof servicethe public has a vital interest to be acquainted with the conditions prescribedfor manningthePublicServiceand,thus,voiceanopinion onthequalityoftheAdministration. Theinterestofthepublic in proper government cannot be overstated. (1984 5 Ifit wasnotfor thedispensingprovisionsofpara.4ofArticle 57,noquestion wouldarise ofamenity onthepart oftheCouncilof Ministersto dispensewiththepublication of a legislative 10 act. Counselfor theapplicant argued, as stated, that power to do away with the publication of a legislative act, is limited to purely administrative acts on a juxtaposition of the provisions ofArticles 54and 57ofthe Constitution. Histhesisisthat the two Articles deal with separate matters and cover different 15 spheres of activity. With this I cannot agree. Article 54defines thepowersofthe Councilof Ministersina broad perspective, whereas Article 57 regulates the manner of their exercise. The application ofArticle 57isnot, interms or impliedly, limited to anyparticular aspect of the exercise of the 20 powers of the Council of Ministers. Its application extends to every decision of the Council of Ministers and that includes decisionsofalegislativecontent. Consequently,thesubmission must bedismissed, asindicated, on analysis oftherelevant provisions ofthe Constitution. Neverthelesstheproblem doesnot 25 end there. There is another aspect of Article 57 that merits scrutiny. The power vested in the Council of Ministers under Article 57.4todispensewithpublication ofadecision,isbytheopening wordsofthe paragraph in question limited todecisionsenforce- 30 able inthemselves. Automatic enforceability of the decision is a prerequisite to the exercise bythe Council of Ministers of the power to do away with publication. And asnodecisionof a legislativecontent isenforceable intheabsence ofpublication, a fair construction of para.

Article 57suggests that its appli- 35 cationislimitedtodecisionsofanonlegislativenature. Article 82ofthe

Constitutionmakespublication ofalawaconditionof its validity. "Law", in the context of Article 82,isnot limited to any particular type of legislation. It is all embracive; it applies to every speciesof legislation, irrespective of wherefrom 40 956 3 C.L.R. Vakis v. Republic Pikis J. it emanates. On a literal interpretation, "law" encompasses every code containing binding legal norms. That the constitutionalmakersintended to ascribetotheword"law"itsordinary connotation, is supported bythe definition of law in para. 5(a) 5 ofArticle 188. Inviewoftheabove,it appearstomethat asa matter of construction and interpretation of the provisions of para.

Article 57

,the power of the Council of Ministers to sanction the non publication of its decision, doesnot extend to decisionsofalegislativecharacter. However,thisinterpretation 10 isnotjudiciallyopentothisCourt,inviewofthedecisionofthe Full Benchofthe SupremeCourtinEconomides v.The Republic

(1973)3 C.L.R. 410, and the doctrine of judicial precedent. Thedoctrine ofstaredeciseesmakesdecisions ofhierarchically superior Courts binding. The precedent set thereby must be 15 followed byeveryCourtwhosedecisionsaresubject toappealto the superior Court that issued the judgment. The doctrine of binding precedent and its application in Cyprus werediscussed at length in TheRepublic (Minister of Finance andAnother) v. Demetrios Demetriades
(1977)3 C .L.R.
  1. The Full Bench 20 of the Supreme Court reaffirmed that the doctrine of binding precedent liesat the root of our legal systemin much thesame way as it does in England. It is unnecessary to examine in detailtheviewsexpressedbyindividualjudgesfor theyallagreed thatCourtsareboundtofollowlegalprecedentssetbyhierarchi25 cally superior Courts. And the Full Bench of the Supreme Court, exercisingrevisionaljurisdiction or appeal,is,vis-a-visa single judge exercising revisional jurisdiction at first instance, a hierarchically superior Court. Binding,itmustbenoted,isonlythat part ofajudgmentthat 30 constitutes the ratio decidendi of a case. The ratio of a case is the principle of law upon which the result of the case is founded. And if found on more than one principles, both are equally binding
  2. I shall not concern myself further in this judgment with the 35 application in practice of the doctrine of binding precedent, a subject Ihad occasion to analyse insomedetailinmy book on the English common law and doctrines of equity and their
  3. Ogden Industries Pty Ltd. v. Lucas [1969] \ All E.R. 121 (P.C.); MiUaigos v. George Frank (Textiles) Ltd. [1975] 3 All E R . 801, 803 (H.L.). 957 J Pikis J . Vakis \. Republic
(1984)application in Cyprus.1 This is not to overlook the criticisms of the doctrine by Lord Denning and his repeated attempts to have it modified, not very successful, as he, himself, admits in liis book
  1. Lord Denning adheres to the view that application of the doctrine of binding precedent conflicts with the all 5 important duty of the Court to do justice in the particular circumstances of a case. On the other hand, one should not underestimate the importance of certainty in the law and the certainty it infuses in the exercise of rights conferred by law, as well as the guarantee it provides against arbitrariness. I shall 10 not debate the subject further, unnecessary for the purposes of thisjudgment. Iam glad, however,to note thatgreater freedom isnowadaysacknowledged toCourts offinal instance,in England as well as in Cyprus, to depart from previousdecisions of their own
  2. Speaking of myself, I regard myself bound by the ratio of the decision of the Full Bench in Economides, supra, and I feel constrained to follow it notwithstanding my reservations about • itscorrectness. The result of the case was expressly founded on the interpretation of para.

Article 57

,favoured by the Full 20 Bench to the effect that there is power to dispense with the publication of schemes of service. That binds me to hold likewise. That the issuewasnot castin the perspective set forth in this judgment, is no reason for departing from the decision of the Full Bench

  1. This is not to suggest that the Council of 25 Ministers should be encouraged in its practice to withhold publication of schemes of service. Soon after the establishment of the Cyprus Republic, the Supreme Constitutional Court indicated that it is desirable that schemes of service should be published for general information
  2. With this approach, I am 30 whollyin agreement for it istoeverybody's interest that schemes of service should see light as soon as they are approved. Publication makes for open government - highly conducive to a sound Administration.
  3. 1981 Proodos Press, written in Greek—See, in particular, Cap. 7 and p. 79 et seq.
  4. The Discipline of Law—Part
  6. See, Demetriades, supra, and 77K; Statementof the Judicial Committee of the Houseof Lords, appearing in [1966] 3 All E.R.
  8. Sec, Baker And Another v. The Queen [1975] 3 All E.R. 55 (P.C.)
  9. liter Ishinv. The Republic, 2 R.S.C.C..
  10. 958 15 3 C.L.R. Vakfs v. Republic Pikis J. For the reasons given above, the subjudice decision stands thepreliminarytesttowhichithasbeenexposed. Adaywillbe begivenfor inquiringintothemerits ofthe case. Lettherebe no order as to costs. 5 Orderasabove* ^ 959

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