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Obsah (6)Article 140oArticle 152oArticle 140Article 52Article 149Article 25

3 C.L.R. 18 Απριλίου, 1985, 10, 29 Ιουνίου, 1985 ΑΝΑΦΟΡΙΚΑ ΜΕ ΤΟ ΑΡΘΡΟ 140 ΤΟΥ ΣΥΝΤΑΓΜΑΤΟΣ ΕΝΩΠΙΟΝ: ΤΡΙΑΝΤΑΦΥΛΛΙΔΗ Πρ., Α. ΛΟΊ'ΖΟΥ, ΜΑΛΑΧΤΟΥ. ΔΗΜΗΤΡΙΑΔΗ, ΣΑΒΒΙΔΗ, ΛΩΡΗ. ΣΤΥΛΙΑΝΙΔΗ, ΠΙΚΗ. ΚΟΥΡΡΗ, Δ/οτώ

Article 140o

f the Constitution—Decision of the House of Representatives calling upon the President of the Republic to proceed forthwith to proclaim a presidential election— Taken because of disagreement, between the President of 5 the Republic and the House of Representatives, inrespect of the handling of the Cyprus Problem—No provision in relationto thehandlingoftheCyprus problem inthe Constitution—Though sub judice decision the expressionof political will, as Cyprus problem outside theframework of 10 the Constitution, said decision cannot be promulgatedby President of the Republic by publication in the official gazette of the Republic

Article 152of the

Constitution—And as this Court can exercise its jurisdictionunder Article 140of theConstitution only in respect of laws or 15 decisions of the House of Representatives which maybe promulgatedasabove, only lawsordecisionswhich maybe promulgated can be referred bythePresident of the Republic to this Court

Article 140of the

Constitution —And that since thesubjudice decision cannot'be pro- 20 1466 3 C.L.B. 5 Pres. of Republic v. House of R/tatives mulgated there can be no question of this Courtconsidering, and expressingan opinion in respect of the view of the Presidentof the Republic that such decision is repugnant to or inconsistent with Articles 43.1, 44.1, 46, 61, 82 and 179 of the Constitution. Composition of the Court—-Exemptionfrom. 10 15 20 25 30 35 On the 9th April 1985 the President of the Republic referred,

Article 140

of the Constitution, to the Supreme Court for its opinion "the question as to whether the Decision of the House of Representatives, which was taken on the 29th March 1985 and was transmitted on the 2nd April 1985 to the President of the Republic for promulgation

Article 52

of the Constitution, and by means of which the House 'decides and calls upon the President of the Republic' to 'proceed forthwith to proclaim a presidential election.... to be held within 45 days' in case he does not comply with the Resolution of the House dated 22nd February 1985, is repugnant to or inconsistent with the provisions of Articles 43.1, 44.1, 46, 52, 61, 82 and 179 of the Constitution". Held, (A) per Triantafytlides P., A. Loizou, Mafochtos, Demetriades,Savvides, Loris and Stylianides 31., Pikis and Kourris, 31. dissenting,

(1)that the sub judice Decision of the House of Representatives, dated 29th March 1985, in which reference is made also to the Resolution of the House of Representatives dated 22nd February 1985, was taken because of disagreement, in respect of the handling of the Cyprus Problem, between the President of the Republic and the House of Representatives, both being elected exponents of the will of the People.
(2)That the Cyprus Problem, as it exists to-day, was not, and could not have been, envisaged when the Constitution of the Republic of Cyprus came into operation on the 16th August 1960, and, therefore, in the Constitution there does not exist, and there could not exist, any provision in relation to the handling of the Cyprus Problem, as such Problem, because of its nature, is outside the framework of the Constitution.
(3)That the sub judice Decision of the House of Re1467 Pres. of Republic v. House of R/tatives (198S) presentatives, dated 29th March 1985, is the expression of political will in respect of the handling of the Cyprus problem, but, as the Cyprus Problem, because of its nature, is outside the framework of the Constitution, the said Decision of the House of Representatives cannot be promulgated by the President of the Republic by publication in the Official Gazette of the Republic

Article 52of the Constitution. 5

(4)That this Court can exercise its jurisdiction

Article 140

of the Constitution only in respect of laws or 10 decisions of the House of Representatives which may be promulgated by publication in the Official gazette of the Republic,

Article 52

of the Constitution, and this is to be clearly derived from the provisions of paragraph 1 of Article 140, which has to be read together with Article 15 52, as well as from the provisions of paragraph 3 of Article 140.

(5)That, consequently, only a law or decision of the House of Representatives which may be promulgated

Article 52

, above, can be referred by the President of the 20 Republic to this Court

Article 140

, and if the Court finds that a particular law or decision of the House of Representatives cannot be promulgated

the said Article 52 then this Court cannot give its Opinion as to whether such law or decision is repugnant to or incon- 25 sistent with any other provision of the Constitution; and that since the sub judice Decision of the House of Representatives cannot be promulgated by the President of the Republic

Article 52

, there can be no question of this Court considering, and expressing an opinion in res- 30 pect of, the view of the President of the Republic that such Decision of the House of Representatives is repugnant to or inconsistent with Articles 43.1, 44.1, 46, 61, 82 and 179 of the Constitution. Per Pikis, J., Kourris I. concurring:

(1)That the operative part of the decision of the House of Representatives is repugnant and incosistent with(
  1. a)Article 43.1 of the Constitution laying down that the 1468 35 3 C.L.R. Pres. of Republic v. House of R/tatives President of the Republic shall hold office for a five-year period. 5 (
  2. b)Article 44.1 of the Constitution that prescribes exhaustively the circumstances

which the Office of the President of the Republic is vacated, and 10 (c) Article 179.1.2 of the Constitution that prohibits the enactment by the House of Representatives of any law or decision that is repugnant to or inconsistent with any of the provisions of the Constitution, the Supreme law of the Republic. 15

(2)That, also, the said decision is in conflict and, in consequence, repugnant to and inconsistent with the separation of the powers that

lies the distribution of State power and authority to the legislative, executive and judicial branch of the State of Cyprus; and that, consequently, the decision in question cannot be promulgated. Per Pikis, J., Kourris, 1.concurring: 20 25 30 35

(1)Promulgation is an indispensable requisite for the enforceability of any law or decision of the House of Representatives. Without promulgation no enactment or decision becomes part of the law. The President is not the judge of the constitutionality of a law or decision submitted for promulgation. In conformity with the principle of separation of powers that pervades every part of our Constitution, jurisdiction to pronounce on the constitutionality of a law or decision vests in the judicial authorities of the State, the highest judicial authority, in this case the Supreme Court of Cyprus.
(2)The nature and terms of exercise of the jurisdiction of the Supreme Court are succinctly laid down in Article 140. The Supreme Court is enjoined in mandatory terms to express its opinion "....whether such law or decision or any specific provision thereof is repugnant to or inconsistent with any provision of this Constitution....". The jurisdiction of the Supreme Court to resolve constitutional issues. emanates from the Constitution and is subject to the conditions and limitations envisaged therein.
(3)The submission that the decision is extra-conslitu1469 Pros, of Republic v. House of R/tatives
(1985)tional conflicts with the professed aim of the House of Representatives recited in the preamble of the decision of 29.3.85 claiming jurisdiction for the decision

the Constitution, and purporting to exercise a competence given it by its provisions. That the House of Representatives pur- 5 ported to act within the framework of its constitutional powers, is also evidenced by the decision itself, providing for a by-election "within 45 days, as provided in the Constitution of the Cyprus Republic".

(4)No law or decision of the House of Representatives 10 that is repugnant to or inconsistent with any of the provisions of the Constitution can become part of the law of the Cyprus Republic, as Article 179.2 categorically lays down.
(5)The judiciary is not the overseer of the acts of the 15 other two branches of the State but the guardian of the Constitution and the rule of law.
(6)Courts have no right to relinquish jurisdiction vested in them by the Constitution or any law compatible with the Constitution for that matter. Certainly, the exercise of 20 their jurisdiction does not depend on the background or substratum of a law or decision transmitted for promulgation, or the political controversy surrounding it. They are dutybound, as required by Article 140, to examine the legal implications of the law or decision submitted for 25 promulgation, in order to determine whether the law or decision accords with the Constitution or is repugnant to or inconsistent with any of its provisions.
(7)What is subject to judicial examination

Article 140

, are the legal implications of a decision submitted 30 for promulgation, and their compatibility with the Constitution. Not the political objectives behind it. So long as acts of the House of Representatives are confined to the expression of political opinion, they are not subject to judicial control. They become subject to judicial control, un- 35 der Article 140, when the House of Representatives seeks to give to its decisions the force of law. Here again, the control is limited to determining whether such decision, as the present, is repugnant to or inconsistent with any provisions of the Constitution. 40 1470 3 C.L.R. Pres. of Republic v. House of R/tatives 10'

(8)A fundamental aspect of the doctrine of separation of powers, as it finds expression in the Constitution of Cyprus, is that the tenure in office of one power of the State is not dependent on the wish or approval of anyone of the other two powers. The terms of tenure of members of the three powers of the State are regulated, minutely one might say, by the Constitution itself. In all three cases, the Judiciary is the power entrusted by the Constitution to determine whether a vacancy has occurred in any power of the State. 15
(9)The tenure in office of the President of the Republic is in no way dependent,

the Constitution of Cyprus, on the confidence or approval of the House of Representatives. Each of the two political powers of the State is directly accountable to the electorate. 5 20 25 30

(10)The mission of the Judiciary is to apply the law, as laid down in the Constitution and enactments according therewith, ensuring thereby that Sate power is exercised according to law. It is through this process that the application of the rule of law is ensured. And, the rule of law is the compass of democratic rule. If we were to administer justice according to our perceptions of public opinion, we would be turning the Judiciary into a rulemaking body usurping the legislative power entrusted by the Constitution to the House of Representatives. The House of Representatives are,

the Constitution of Cyprus and subject to it, the custodians of the legislative power. Not only constitutional order but every centainty in the law too, would be destroyed if we were to act in the manner suggested by counsel for the House of Representatives. And then chaos would result. Opinon as above. Cases referred to: 35 Aloupas v. National Bank of Greece

(1983)1 C.L.R. 55 at p. 73; In re Georghiouv. Republic
(1983)2 C.L.R. 1 at p. 5; Attorney-General v. Ibrahim and Others, 1964 C.L.R. 195; Attorney-General v. Georghiou
(1984)2 C.L.R. 251; 1471 Pres. of Republic v. House of R/tatives
(1986)Board for Registration of Architects and Civil Engineers v. Kyriakides
(1966)3 C.L.R. 640 at pp. 645, 654; Martin Luther v. Luther M. Borden
(1849)12 L.E. 581, at pp. 592, 599, 603, 604; p. Henry A. Oetzen v. Central Leather Company
(1918)62 L. E., p. 726 at pp. 731-732; 5 Colegrove v. Green
(1946)90 L . E . 1432; Charles W. Baker v. loe C. Carr
(1962)7 L. E. 2d p. 663 at pp. 680, 681, 684, 685, 686; Powell v. McCormack
(1969)23 L . E . p. 532;
(2d)at p. 491, 10 United States v. Nixon
(1974)41 L.E. 2d at p. 1039; F. David Mathews v. Santiago Diaz
(1976)48 L . E . 2d Ed. 478 at p. 490, 491; Ins. v. Chadha
(1983)77 L . E . 2d p. 317 at pp. 338, 339, 349; Lawrence O'Brien v. Willie Brown
(1972)1, at pp. 2, 5, and 6; 15 34 L.E. 2nd Charles W. Baker v. 3oe C. Carr
(1962)7 L . E . 2d p. 663 at pp. 680, 681, 684, 685, 686; Attorney-General 20 v. Nissan [1969] I All E.R. 629; Papaphilippou v. Republic, 1 R.S.C.C. 62; Kourris v. Supreme Council of ludicature
(1972)3 C.L.R. 390; Keramourghia "AIAS" Ltd. v. C.L.R. 38 at p. 41; Christoforou
(1975)1 25 Frangoulides v. Republic
(1966)3 C.L.R. 676. Reference. Reference by the President of the Republic for the opinion of the Supreme Court of the question whether "the 1472 30 3 C.L.R. Pres. of Republic v. House of R/tatives decision of the House of Representatives taken on the 29th March, 1985 and transmitted on the 2nd April, 1985 to the President of the Republic for promulgation

Article 52

of the Constitution by means of which the House 5 'decides and calls upon the President of the Republic' to 'proceed forthwith to proclaim a presidential election.... to be held within 45 days' in case he does not comply with the resolution of the House dated 22nd February, 1985, is repugnant to or inconsistent with the provisions of Articles 10 43.1, 44.1 46, 52, 61, 82 and 179 of the Constitution." 15 St. Soulioti (Mrs.), Attorney-General of the Republic with L. Loucaides, Deputy Attorney-General of the Republic, and N. Charalambous, Senior Counsel of the Republic, for the President of the Republic. L. N. Clerides with Ph. Clerides, A. Markides, M. Papapetrou, A. Papacharalambous and Chr. Clerides, for the House of Representatives. Cur. adv. vult. 20 18th April 1985. At the sitting of the Supreme Court on the 18th April 1985 counsel appearing for the House of Representatives raised an objection regarding the composition of the Court for the hearing of these cases on the ground that the Presi25 dent of the Court, Mr. M. Triantafyllides, had been acting as adviser of the President of the Republic in intercommunal talks for the solution of the Cyprus Problem. After a statement of the President of the Court that he had ceased to act in the said capacity the objection of coun30 sel for the House of Representatives regarding the composition of the Court was withdrawn and the Court made the following statement: 35 "In accordance with the relevant constitutional and legislative provisions the Supreme Court is composed of its Members. Judges who are disabled from sitting or who for personal reasons themselves decide that it is inadvisable to take part in the trial of any parti1473 Pres. of Republic v. House of R/tatives

(1985)cular case, are exempted from the composition of the Court. The issue of the composition of the Supreme Court is examined judicially by the Supreme Court only if raised by the parties. For this reason there does not arise an issue of the composition of the Court in the present case given that the objection to the participation of the President of the Supreme Court has been withdrawn." 10th 3une, 1985. TRIANTAFYLLIDES P. read the following opinion of the Court. On the 9th April 1985 the President of the Republic referred,

Article 140

of the Constitution, to the Supreme Court for its opinion "the question as to whether the Decision of the House of Representatives, which was taken on the 29th March 1985 and was transmitted on the 2nd April 1985 to the President of the Republic for promulgation

Article 52

of the Constitution, and by means of which the House 'decides and calls upon the President of the Republic' to 'proceed forthwith to proclaim a presidential election... to be held within 45 days' in case he does not comply with the Resolution of the House dated 22nd February 1985, is repugnant to or inconsistent with the provisions of Articles 43.1,44.1, 46, 52, 61, 82 and 179 of the Constitution". 15 20 The Attorney-General of the Republic in replying, on the 30th April 1985,to a request of counsel for the House of Representatives, made on the 24th April 1985, for further particulars, informed them that the President of the Republic is seeking the Opinion of the Supreme Court in 30 respect of paragraph 3 of the Decision of the House of Representatives dated 29th March

  1. The case came up before the Supreme Court for directions on 18 April 1985 and 17 May 1985 and, pursuant to Article 140.2 of the Constitution the Court heard, through their counsel, arguments on behalf of the President of the Republic and the House of Representatives on 29, 30, 31 May, 3 and 4 June
  2. 35 The Supreme Court considered the question referred to it and the unanimous opinion of the majority of its Members 40 (M. Triantafyllides, A. Loizou, Y. Malachtos, D. Demetri1474 3 C.L.R. Pres. of Republic v. House of R/tatives Triantafyllides P. ades, L. Savvides, A. Loris and D. Stylianides) is the following: 5 10
  3. The sub judice Decision of the House of Representatives dated 29th March 1985, in which reference is made also to the Resolution of the House of Representatives dated 22nd February 1985, was taken because of disagreement, in respect of the handling of the Cyprus Problem, between the President of the Republic and the House of Representatives, both being elected exponents of the will of the People.
  4. In the Constitution of the Republic of Cyprus there does not exist, and there could not exist, any provision in relation to the handling of the Cyprus Problem.
  5. The sub judice Decision of the House of Represen15 tatives, dated 29th March 1985, is the expression of political will in respect of the handling of the Cyprus Problem, but, as the Cyprus Problem, because of its nature, is outside the framework of the Constitution, the said Decision of the House of Representatives cannot be promulgated by 20 the President of the Republic by publication in the Official Gazette of the Republic

Article 52of the Constitution.

4. In view of the above, and of the provisions of paragraphs 1 and 3 of Article 140 of the Constitution, there 25 can be no question of the Supreme Court considering, and expressing an opinion in respect of, the view of the President of the Republic that the sub judice Decision of the House of Representatives is repugnant to or inconsistent with Articles 43.1, 44.1, 46, 61, 82 and 179 of the Con30 stitution. The present Opinion is notified, in accordance with Article 140.2 of the Constitution, to the President of the Republic and the House of Representatives. PIKIS J.: Invoking the provisions of Article 140 of the 35 Constitution the President of the Republic referred to the Supreme Court for its opinion the constitutionality of the decision of the House of Representatives of 29th March, 1985, specifically the part calling upon the President of the 1475 Pikis J. Pres. of Republic v. House of R/tatives

(1985)Republic to comply with the resolution of the House of Representatives of 22nd February, 1985, in relation to the handling of the Cyprus problem "otherwise to proceed to the 'immediate proclamation of presidential elections in order for the people to 5 express their sovereign will' to be held within 45 days, as provided for in the Constitution of the Cyprus Republic." The opinion of the Supreme Court is sought in order to determine whether the President of the Republic must pro- 10 mulgate the decision

the provisions of Article 52 of the Constitution, by publication in the Official Gazette. 2. Article 140 of the Constitution confers a right to the President and Vice President of the Republic of Cyprus acting cojointly to refer to the Supreme Court for a binding 15 opinion, the constitutionality of a law or decision in order to be guided as to its promulgation. Notwithstanding my conviction that the position I adopted in Aloupas v. National Bank of Greece

(1983)1 C.L.R. 55, 73, is juristically correct, that is, that recourse to the law of necessity 20 is only permissible provided the necessity has been legislatively acknowledged and the manner of coping with it regulated by law, I consider myself bound by the decision of the Full Bench of the Supreme Court in the case of Georghiou
(1983)2 C.L.R. 1, 5 (respecting the application 25 of the law of necessity to the appointment of a Greek Cypriot to the office of Deputy Attorney-General) to accept that recourse to the law of necessity is permissible independently of legislative recognition and regulation. My approach to the subject in Aloupas (supra) was not adopted 30 by the majority of the Court in that or any other decision of the Supreme Court. According to the caselaw of the Supreme Court, binding as it is upon me, recourse to the law of necessity is justified whenever the functioning of the Constitution and its insti- 35 tutions has become impossible owing to the absence of the Turkish Officers of the Republic. In the case of the Attorney-General v. Ibrahim And Others, 1964 C.L.R. 195, it was accepted that the President of the Republic could promulgate a law by publication in the Official Gazette 40 1476 3 C.L.R Pres. of Republic v. House of R/tatives Pikis J. without the concurrence of the Vice President of the Republic. 5 10 Consequently, I shall proceed to examine the question referred to us, despite the fact that the reference is made by the Presideni of the Republic, acting alone and, shall exercise the jurisdiction vested in the Supreme Court by Article 140 to give its opinion on the constitutionality of laws or decisions transmitted for promulgation in the Official Gazette of the Republic. After due consideration of the submissions made by the Attorney-General and Deputy Attorney-General, on behalf of the President of the Republic and counsel appearing on behalf of the House of Representatives, I have come to the following conclusions:- 15 (a) Article 52 makes obligatory the promulgation of laws and decisions that create law, that is, that create rights and obligations cognizable in law. Only decisions taken within the framework of the Constitution and accord with its provisions can create law. Article 52 lays down 20 the official manner of proclaiming the law in the interest of certainty of its existence and its universal application. 25 30 35 40 (b) By the request for the promulgation of the sub judice decision the House of Representatives intended to create a legal obligation for the resignation of the President of the Republic and the promulgation of presidential elections in case of his non compliance with the resolution of the House dated 22nd February, 1985, and the decision of 29th March, 1985. In accordance with the provisions of Article 140 the Supreme Court has a constitutional duty to decide whether the decision here

consideration is repugnant to or inconsistent with any of the provisions of the Constitution and the principle of separation of powers embodied in the Constitution of the Cyprus Republic. The separation of State powers is a constituent element of the Constitution, as repeatedly acknowledged by the Supreme Court. (c) The exercise of the jurisdiction conferred by Article 140 does not depend on the content of the decision, 1477 Pikis J. Pres. of Republic v. House of R/tatives

(1985)particularly its political implications (political thicket) but on whether it is intended thereby to create rights and obligations in the sphere of the law. And in the present case the request of the House of Representatives for promulgation of the decision by publication 5 in the Official Gazette aimed exclusively at the creation of a legal obligation binding the President to comply with the sub judice decision, to resign from office in the opposite case, and to provide for the holding of the presidential by-election within the time limit 10 specified in Article 44.4 of the Constitution. The nature of the question we must answer remains unchanged by the fact that the substratum of the decision is related to the handling of the Cyprus problem. The submissions made by counsel for the House of 15 Representatives are in conflict with the professed intention of the House of Representatives, set out in the preamble to the decision, declaring that their actions are taken in the context of the powers and competence vested in the House by the Constitution. This position 20 is affirmed by the concluding part of the decision whereby the holding of a by-election is sought "...within 45 days, provided for in the Constitution of the Cyprus Republic." We are required to decide whether the aforementioned decision of the House of Repre- 25 sentatives is compatible with constitutional provisions respecting the tenure in office of the President and whether it is binding upon the President of the Republic. The promulgation of the decision is dependent on the opinion of the Court on its constitutionality. 30 3. After examination of the submissions made and after exhaustive study of the matter, I have come to the conclusion that the decision is repugnant to and inconsistent with three articles of the Constitution and, in addition, conflicts with the principle of separation of powers that aims at the 35 decentralisation of State powers. The doctrine of separation of powers is intended to provide for the symmetrical and balanced functioning of the democratic regime. Specifically, the decision is manifestly repugnant to and inconsistent with (
  1. i)Article 43.1 of the Constitution that lays down that 1478 40 3 C.L.R. Pres. of Republic v. House of R/tatives Pikis J. the President shall hold office for five years. 10 (
  2. ii)Article 44.1 of the Constitution prescribing conclusively the circumstances of a vacancy occurring in the office of the President of the Republic, that is, the manner of his resignation and circumstances of fall from office. The stay of the President of Republic in office does not depend, in accordance with the Constitution of Cyprus, upon the wishes or the expression of confidence of the House of Representatives. 15 (
  3. hi)Article 179.1.2 that proclaims the Constitution to be the supreme law of the Republic and prohibits the taking of any decision that is repugnant to or inconsistent with "any of the provisions of the Constitution." 5 4. The opinion of the Court is confined to the expression of an opinion on the implications premulgation would have on the state of the law with regard to the stay of the President of the Republic in office and the creation of an obli20 gation for the holding of a presidential by-election. The jurisdiction of the House of Representatives to express views on governmental action and the amenity to make suggestions for the effective functioning of the democratic regime h not doubted. Resolutions and decisions of the 25 House of Representatives of this nature, have an extra legal character and their review is outside the province of the judiciary. Also, the House of Representatives who alongside with the President of the Republic constitute the political pow30 ers of the State, have every right to adopt positions with regard to the political future of Cyprus without, however, such decisions acquiring the force of law. 35 5. For as long as the Constitution of Cyprus is in force and applies in accordance with the law of necessity, only the promulgation of laws and decisions that are compatible with the provisions of the Constitution is permissible. Deviation or departure from this position would result in

mining the rule of law. Consequently, the sub judice decision is repugnant to and inconsistent with the afore1479 Pikis J. Pros, of Republic v. House of R/tatives

(1985)mentioned provisions of the Constitution and conflicts with the principle of separation of State powers and for these reasons lacks legal force. Therefore, the answer to the question referred to the Supreme Court is that the decision of the House of Representatives of 29th March, 1985,can- 5 not be promulgated, by publication in the Offical Gazette, because it is repugnant to and incosistent with the Constitution of the Cyprus Republic.
  1. The reasoning of this decision in its entirety will be given the soonest and in any event not later than 30th 10 June,
  2. The text will be deposited with the Registry of the Supreme Court and copies will be distributed to the interested parties. KOURRIS J.: I have very carefully read in advance the opinion of brother Judge Pikis in this Reference. 15 I find myself in complete agreement with the above Opinion and I associate myself with whatever is stated therein. 29th June,
  3. TRIANTAFYLLIDES, P. read the supplementary reasons for 20 the opinion of the Court. When the Supreme Court, on the 10th June 1985, gave, by majority, its Opinion in the present case it was stated that supplementary reasons for it would be given by the 30th June 1985 and so the majority of the Members of the Court (M. Triantafyllides, A. Loi- 25 zou, Y. Malachtos, D. Demetriades, L. Sawides, A. Loris and D. Stylianides) give now such supplementary reasons: The question regarding the constitutionality of the sub judice Decision of the House of Representatives, dated 29th March 1985, was referred to the Supreme Court by 30 the President of the Republic

Article 140of the Constitution, which reads as follows: " 1 .

The President and the Vice-President of the Republic acting jointly may, at any time prior to the promulgation of any law or decision of the House of 35 Representatives, refer to the Supreme Constitutional Court for its opinion the question as to whether such law or decision or any specified provision thereof is 1480 3 C.L.R. Pres. of Republic v. House of R/tatives Triantafyllides P. repugnant to or inconsistent with any provision of this Constitution, otherwise than on the ground that such law or decision or any provision thereof discriminates against either of the two Communities. 5 10 15 20 2. The Supreme Constitutional Court shall consider every question referred to it

paragraph 1 of this Article and having heard arguments on behalf of the President and the Vice-President of the Republic and. on behalf of the House of Representatives shall give its opinion on such question and notify the President and the Vice-President of the Republic and the House of Representatives accordingly. 3. In case the Supreme Constitutional Court is of the opinion that such law or decision or any provision thereof is repugnant to or inconsistent with any provision of this Constitution such law or decision or such provision thereof shall not be promulgated by the President and Vice-President of the Republic." The jurisdiction of the Supreme Constitutional Court

Article 140, above, is exercised by the Supreme Court by virtue of sections 9(a) and 11

(1)of the Administration of Justice (Miscellaneous Provisions) Law, 1964 (Law 33/64). As regards the effect of an Opinion of the Court

Article 140

there must be noted a conflict between the official Greek and Turkish texts of the Constitution and. consequently, such conflict has to be resolved by this Court

Article 149

(a) of the Constitution by reference to the English text of the draft of the Constitution, dated 6th 30 April 1960, which coincides in this respect with the Turkish text. We have, therefore, no difficulty in holding that the correct wording of paragraph 3 of Article 140 is that in the Turkish and English texts of that paragraph, especially as such paragraph corresponds to paragrah 3 of the 35 analogous Article 142 of the Constitution and as the Greek, Turkish and English texts of paragraph 3 of Article 142 are the same as the Turkish and English texts of paragraph 3 of Article 140. 25 Even though a reference

Article 140

, such as this 40 one, would, normally, have had to be made by the Presi1481 Triantafvllides P. Pres. of Republic v. House of R/tatives (198S) dent of the Republic and the Vice-President of the Republic acting jointly, the President of the Republic was entitled to act on his own on the present occasion by virtue of the "law of necessity", because ever since the end of December 1963 there has not been participation in the Government of the Republic of any person acting in the capacity of the Vice-President of the Republic, due to exceptional circumstances of which the Court takes judicial notice. 5 By its sub judice Decision, dated 29th March 1985, the 10 House of Representatives called upon the President of the Republic to proceed forthwith to proclaim a presidential election, to be held within forty-five days, in case he does not comply with a Resolution of the House of Representatives dated 22nd February 1985. 15 The said Decision and Resolution of the House of Representatives were adopted because of disagreement, in respect of the handling of the Cyprus Problem, between the President of the Republic and the House of Representatives, both being elected exponents of the will of the Peo- 20 pie. The Cyprus Problem, as it exists today, was not, and could not have been envisaged when the Constitution of the Republic of Cyprus came into operation on the 16th August 1960, and, therefore, in the Constitution there does 25 not exist, and there could not exists, any provision in relation to the handling of the Cyprus Problem, as such Problem, because of its nature, is outside the framework of the Constitution. In the Constitution there was incorporated the Basic 30 Structure of the Republic of Cyprus which was agreed by means of the Zurich Agreement, dated 11th February 1959, and the London Agreement, dated 19th February 1959, and, as a result, it is provided by Article 182 of the Constitution that its Basic Articles, by means of which 35 the said Basic Structure was incorporated in the Constitution cannot be amended in any way. We take judicial notice that as has been agreed between the late President of the Republic of Cyprus, Archbishop Makarios, and the Turkish Cypriot leader, Mr. R. Denk- 40 1482 3 C.L.R. Pres. of Republic v. House of R/tatives Triantafyllides P. 5 tash, on the 12th February 1977, and between the President of the Republic of Cyprus, Mr. Sp. Kyprianou, and Mr. R. Denktash on the 19th May 1979, the solution of the Cyprus Problem will entail a federal structure of the Republic of Cyprus. 10 It is obvious that a federal structure cannot be set up without amending Basic Articles of the Constitution of the Republic and thus appropriate processes will have to be resorted to outside the framework of the existing Constitution of Cyprus. 15 Although the Cyprus Problem is, because of its nature, outside the framework of the Constitution of Cyprus, it is, of course, nevertheless, the right of elected political organs, expressing in the exercise of their respective competences the will of the People, such as the President of the Republic and the House of Representatives, to take political decisions about the Cyprus Problem. The sub judice Decision of the House of Representatives, dated 29th March 1985, is the expression of political will 20 in respect of the handling of the Cyprus Problem, but, as the Cyprus Problem, because of its nature, is outside the framework of the Constitution, such Decision cannot be promulgated by the President of the Republic by publication in the official Gazette of the Republic

Article 2552 of the Constitution.

30 This Court can exercise its jurisdiction

Article 140

of the Constitution only in respect of laws or decisions of the House of Representatives which may be promulgated by publication in the official Gazette of the Republic,

Article 52

of the Constitution, and this is to be clearly derived from the provisions of paragraph 1 of Article

  1. which has to be read together with Article 52, as well as from the provisions of paragraph 3 of Article
  2. Consequently, only a law or decision of the House of 35 Representatives which may be promulgated

Article 52

, above, can be referred by the President of the Republic to this Court

Article 140

, and if the Court finds that a particular law or decision of the House of Representatives cannot be promulgated

the said Article 40 52 then this Court cannot give its Opinion as to whether 1483 v. Triantafyllides P. Pres. of Republic v. House of R/tatives such law or decision is repugnant to or inconsistent any other provision of the Constitution.

(1985)with So, as we have found that the sub judice Decision of the House of Representatives cannot be promulgated by the President of the Republic

Article 52

. there can be no question of this Court considering, and expressing an opinion in respect of, the view of the President of the Republic that such Decision is repugnant to or inconsistent with Articles 43.1, 44.1, 46, 61, 82 and 179 of the Constitution. 5 10 PIKIS J.: The Constitution of Cyprus confers by Article 140 jurisdiction on the Supreme Court to determine the constitutionality of a law or decision of the House of Representatives submitted for promulgation. The jurisdiction is exercised on the motion of the President who is charged 15

the Constitution with responsibility for the promulgation of laws and decisions transmitted by the House of Representatives for publication in the Official Gazette. Articles 52 and 140 of the Constitution empower the President to seek the opinion of the Supreme Court on the 20 constitutionality of a law or decision of the House of Representatives transmitted for promulgation. On a reference of the President to the Supreme Court

Article 140

the Supreme Court comes

a constitutional duty to decide whether the law or decision in question is constitu- 25 tional. In particular, the Court is required to examine whether the law or decision, or any part thereof, is repugnant to or inconsistent with any of the provisions of the Constitution. Article 140.1 reads: "Article 140.1: The President and the Vice-Presi- 30 dent of the Republic acting jointly may, at any time prior to the promulgation of any law or decision of the House of Representatives, refer to the Supreme Constitutional Court for its opinion the question as to whether such law or decision or any specified pro- 35 vision thereof is repugnant to or inconsistent with any provision of this Constitution, otherwise than on the ground that such law or decision or any provision thereof discriminates against either of the two Communities." 40 1484 3 C.L.R. 5 10 15 20 25 30 35 Pres. of Republic v. House of R/tatives Pikis J. Pending the outcome of the judicial proceeding promul­ gation is suspended. The plain provisions of para. 2 of Article 140 leave no doubt as to the mandatory nature of the jurisdiction of the Supreme Court to render its opinion on the constitutionality of the law or decision transmitted for promulgation. It reads: "Article 140.2: The Supreme Constitutional Court shall consider every question referred to it

pa­ ragraph 1 of this Article and having heard arguments on behalf of the President and the Vice-President of the Republic and on behalf of the House of Repre­ sentatives shall give its opinion on such question and notify the President and the Vice-President of the Re­ public and the House of Representatives accordingly." The jurisdiction vested in the Supreme Constitutional Court by Article 140 is now exercised by the Supreme Court in virtue of the provisions of the Administration of Justice (Miscellaneous Provisions) Law 33/641. The decision of the Supreme Court, though styled an opinion is, in accordance with the provisions of, para. 3 of Article 140, a binding judicial pronouncement deter­ minative of the constitutionality of the law or decision transmitted for promulgation and, depending on the opinion of the Court, the President must promulgate the law or decision or withhold promulgation. The jurisdiction of the Supreme Court

Article 140

is confined to rendering an opinion of the constitutionality of the legislation or decision submitted for promulgation; specifically, it is confined to determining whether the law or decision is repugnant to or inconsistent with any of the provisions of the Constitution. Article 140 is a salutary addition to the armoury of the law. It provides machinery for adjudication upon the constitutionality of a law or de­ cision before it acquires the force of law in the interest of constitutional order and the rule of law. It forestalls pos­ sible breaches or deviation from the provisions or frame­ work of the Constitution, the fundamental law of the land. Article 179.1 proclaims the Constitution to be the supreme ι See, Attorney-General v. Ibrahim And Others. 1964 C.LR 1485 195 Pikis J. Pres. of Republic ν House of R/tetives

(1985)law of the land. No power, competence or authority can be claimed, assumed or exercised, in breach of or defiance to the provisions of the Constitution. Jurisdiction similar to the one conferred on the Supreme Court by Article 140 vests in the Constitutional Council of the French Repubhc. The purpose of such jurisdiction, as in Cyprus, is to earmark the path of the powers of the State to legality and strike down unconstitutional laws and decisions at their genesisi. 5 Invoking the power vested in him by Article 140 the 10 President of the Republic referred to the Supreme Court for its opinion the constitutionality of paragraph 3 of the decision of the House of Representatives of 29.3.
  1. The decision was transmitted to the President of the Republic for promulgation by the Director-General of the House of 15 Representatives by a letter dated 2.4.
  2. The part of the decision impugned as unconstitutional, is the operative part of the decision, notably paragraph 3 It requires, m impe­ rative terms, the President of the Republic to comply with a resolution of the House of 22.2 85 respecting the handling 20 of negotiations for the solution of the Cyprus problem and matters related therewith, and in case of non compliance, it directs him to proclaim Presidential elections to enable the people to express its sovereign will, "to be held within 45 days as provided by the Constitution of the Cyprus 25 Republic." Although the decision does not specify the arti­ cle or articles of the Constitution relied upon by the House of Representatives, it is clear from its wording and con­ tent, they had in mind Article 44.4 of the Constitution that provides that in the event of a vacancy occurring in the 30 Office of the President of the Republic during the currency of his five-year term of office, "... the vacancy shall be filled by a by-election which shall take place within a pe­ riod not exceeding 45 days of the occurrence of such vacancy." Having heard arguments by the Attorney-General, and Deputy Attorney-General, on behalf of the President, and counsel appearing on behalf of the House of Representa­ tives, as ordained in paragraph 2 of Article 140, the Sup1 See, Decision of the Constitutional Council No 12 76; Decision No 78-102 D C — 1 7 1 7 9 1486 76-73 D C— 2 8 35» 3 C.L.R. 5 Pres. of Republic v. House of R/tatives Pikis J. reme Court gave its opinion on 10.6.
  3. In exercise of the jurisdiction vested in the Supreme Court by Article 140, I declared the operative part of the decision of the House of Representatives of 29.3.85, namely paragraph 3, to be repugnant to and inconsistent with(a) Article 43.1, laying down that the President of the Republic shall hold office for a five-year period, 10 (b) Article 44.1 that prescribes exhaustively the circumstances

which the Office of the President of the Republic is vacated, and 15 (c) Article 179.1.2 that prohibits the enactment by the House of Representatives of any law or decision that is repugnant to or incon

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