3 C.LR. 21 Σεπτεμβρίου, 1985 ΕΝΩΠΙΟΝ· ΤΡΙΑΝΤΑΦΥΛΛΙΔΗ, Πρ., ΜΑΛΑΧΤΟΥ. ΔΗΜΗΤΡΙΑΔΗ, ΛΩΡΗ, ΣΤΥΛΙΑΝΙΔΗ, ΠΙΚΗ. ΚΟΥΡΡΗ. Δ/στών ΑΝΑΦΟΡΙΚΑ ΜΕ ΤΟ ΑΡΘΡΟ 140 ΤΟΥ ΣΥΝΤΑΓΜΑΤΟΣ Μεταξύ ΠΡΟΕΔΡΟΥ ΤΗΣ ΔΗΜΟΚΡΑΤΙΑΣ ν. ΒΟΥ

certain terms or conditionsproceed with the engagement is not repugnant to or inconsistent with any of the said Articles of the Constitution, House of Representatives—Ambit of its powers by virtue of Article 61 of the Constitution. 15 20 Council of Ministers—Executive in general—Ambit of powers

Articles 54(a), 58, 81, 116, 167 of the Constitution. On the 19th July 1985 the President of the Republic referred,

Article 140

of the Constitution, to the Supreme Court for its Opinion the question as to whether section 3 of the Engagement of Casual Employees (Public and Educational Service) Law, 1985, is repugnant to, or inconsistent with, the provisions of Articles 54, 58. 61, 2151 Pros- of Republic v. House of R/ntatives

Article 140

of the Constitution, to the Supreme Court for its Opinion the question as to whether section 3 of the Engagement of Casual Employees (Public and Educational Service) Law, 1985, is repugnant to, or inconsistent with, the provisions of Articles 54, 58, 61, 81, 116, 20 167, 168.1 and 179 of the Constitution. The said Law was enacted by the House of Representatives on the 4th July 1985 (the text of the Law is attached hereto). On the 5th July 1985 the House of Representatives trans25 mitted the Law to the President of the Republic, who, before promulgating it pursuant to Article 52 of the Constitution, filed the present Reference. The Supreme Court on the 26th and 27th August 1985 heard, through their counsel, arguments on behalf of the 30 President of the Republic and of the House of Representatives, in accordance with Article 140.2 of the Constitution. The Supreme Court considered the question referred to it and the unanimous Opinion of the majority of its Mem35 bers (M. Triantafyllides, Y. Malachtos, D. Demetriades, A. Loris and D. Strylianides) is the following: 2153 Triantafyllides P. Pres. of Republic v. House of R/ntatives

the Chapter and section of the relevant Budget or supplementary Budget

Article 140

of the Constitution, to the Supreme Court for its opinion the question as to whether section 3 of the Engagement of Casual Employees (Public and Educational Service) Law, 1984, is repugnant to, or inconsistent with, the provisions of Articles 54, 61, 116, 167 and 168.1 of the Constitution. The said Law was enacted by the House of Representatives on the 29th November 1984. The President of the Republic, on the 6th December 1984, returned it to the House of Representatives for reconsideration

Article 51

of the Constitution, but on the 13th December 1984 the House of Representatives decided to persist in the enactment of the Law and, on the 14th December 1984, notified its decision to the President of the Republic, who, before he promulgated the Law

Article 52of the Constitution, filed the present Reference.

The Supreme Court considered preliminary objections of the House of Representatives on the 20th and 21st February 1985 and delivered its Decision thereon on the 18th March 1985. Then, on 9th, 10th, 24th, 25th and 26th April 1985, the Court heard, through their counsel, arguments on behalf of the President of the Republic and the House of Representatives, pursuant to Article 140.2 of the Constitution. The Supreme Court considered the question referred to it and its unanimous Opinion is the following: 30

'Article 61 of the Constitution and comes 5 within the ambit of the exercise of the powers of the Council of Ministers, in relation to the general direction and control of the government of the Republic,

Article 54(a) of the Constitution, and, consequently, is repugnant to, and inconsistent with, the said Articles 61 10 and 54.

the same title

consideration, it would be difficult to raise objections to its constitutionality. However, its provisions go much further and contemplateO) the freezing of government plans for a period of one month in order 25 to afford opportunity to the legislature to stop their implementation by the enactment of a prohibitive Law. The Law entails in effect, suspension of government action in order for the House of Representatives to exercise the control contemplated by the Law over administrative action. In 30 the event of inaction on the part of the House within the statutory period of one month, the Minister of Finance will be free to give effect to his plans subject to compliance with the details furnished to the legislature. In this way the document submitted to the Minister of Finance acquires, 35 after the effluxion by the period of one month, the force of Law. The silence of the House of Representatives, is, in this way, employed as an instrument to legislate in contravention of the provisions of Art. 78.1 and 73.10 of the Constitution that expressly provide that a Law can (") 5.3

Art. 54of the Constitution the exclusive province of the Executive.

20 The position adopted by Mr. Loucaides is that the juris­ diction of the legislative body is by its nature limited to the enactment of general and impersonal rules of Law that cannot

any circumstances take the form of au­ thorization to the House to engage in the exercise of ad- 25 ministrative function. The exercise of executive and ad­ ministrative power is the domain of the executive branch of government(i) wholly outside the framework of juris­ diction of the House of Representatives. The employment of government personnel being, as Mr. Loucaides supported, 30 action of an administrative nature, no power vests in anyone to assume competenceother than the Executice. The assump­ tion of competence by the Legislature in connection with-the employment of government personnel is contrary to and inconsistent with Art. 54 and 61 of the Constitution that 35 define respectively the sphere of jurisdiction of the Exe­ cutive and the Legislature and the separation of powers n> Springer v. Government of Philippines Islands 72 L Ed. 845; Stassinopoulos, «Stihia Demosionomikou Drkeou», 2nd Ed., p. 48 Willoughby, Government of Modern States, p. 239. Wade and Phillips, Constitutional Law, 8th Ed., p. 3 1 . 2160 3 C.L.R. Pres. of Republic v. House of R/ntatives Pikis J. enshrined in the Constitution that confines the jurisdiction of each State power within the area assigned it by the Con­ stitution. In opposition to the above thesis Mr. Martcides submitted that

Art. 61

of the Constitution the House of Representatives has unlimited legislative power extending to the regulation by Law of every subject it so chooses to regulate. Although laws have as a rule, as he said, a general and impersonal character, the Legislature is not 10 precluded from enacting individual laws (προσωπικοί^ νόpouc) 0 ) of administrative content. Espousing the ap­ proach of the posiiivist school of law

Art. 140

of the Constitution to decide the constitutionality of a law re­ ferred to the Court exclusively by reference to the compa­ tibility of its provisions with the Constitution. 5 25 30 The Constitution of the Republic of Cyprus is the source of State power and its provisions earmark the sphere of jurisdiction of the different organs of the State. Where a function is not specifically entrusted by the Constitution to the competences of a particular authority the criterion for the assumption of competence is the nature of the function in view of the principle of separation of powers that per­ vades the constitutional structure of the State of Cyprus(S). " ) N. Saripolos, cSyntagmatiko Dikeo». 4th Ed., Vol. *B\ p.

2. O) Hauriou Droit Constitutionnel Et Institutions Politiques, 5th Ed. p. 905, (Theory of Carro De Malberg). <3) Another school of law, that of natural taw, principal exponent of which was Roussau, supports that the test for thecharacterization of an act as legislative is substantive. Legislation reflects, as this school supports, wider human ideals that cannot because of their nature be but impersonal in character and universal in application. Burdeau Droit Constitutionnel Et Institutions Politiques, 15th Ed., p.
3. «> See, inter alia. Laws 4/65, 39/67, 86/83 and Law 13/60, amended, Cap.
4. (5> Papaphilippou v. The Republic, 1 R.S.C.C.
5. 2161 Pikis J. Pros, of Republic v. House of R/ntatives {1985) Relying on the wording of Art. 61, in particular the acknowledgement of power to the House to legislate "in all matters", Mr. Markddes pressed before us that there is no limitation to matters that may be made the subject of legislation. This submission overlooks that Art. 61 cannot 5 be viewed in isolation or divorced from the framework of the Constitution and the meticulous division of State powers among the three branches of the State namely, the Executive, Legislative and Judicial. Significantly the sphere of jurisdiction of the Executive is defined in a manner cor- 10 responding to that of the Legislature. Art. 54 that precedes Art. 61 in the constitutional edifice entrusts exclusively to the Council of Ministers and confers jurisdiction upon this organ of the State to exercise executive power "in every matter". Consequently the jurisdiction of the Executive and 15 the Legislature is mutually exclusive. The criterion for the classification of State functions is a substantive one as the Supreme Court repeatedly acknowledged. They are classified according to their content not the form that envelopes them, legislative or executive, as the case may be. This is 20 a corollary of the principle of separation of powers that aims at a substantive as opposed to a superficial division of authority among organs of the State. The House of Representatives cannot

the guise of legislating assume administrative functions in precisely the same way that 25 the Executive cannot legislate

the mantle of Administration. The Constitution of Cyprus provides for a strict separation of the jurisdiction of the three branches of the State. The enactment of rules of law and the setting of the 30 framework within which the Administration shall operate, constitute the exclusive province of the Legislature. Notwithstanding that the House of Representatives may regulate by law subjects affecting only a small number of persons, the content of legislation cannot be other than the 35 evolution or adoption of rules of law. If they affect a government department or activity they may take the form of establishing the framework within which a government department shall operate or the Administration will be conducted; but

no circumstances can they have as their object the exercise of administrative competence by the 40 Legislature. The execution of laws is within the exclusive 2162 3 C.L.R. Pros, of Republic v. House of R/ntatives Pikis J . jurisdiction of the Executive. It is from this function that the Executive derives its name. By the assignment of the legislative and executive competences to different organs of the State the diffusion of State authority is achieved 5 which constitutes the principal object of the doctrine of separation of powers in the interest of the symmetrical functioning of the State. The constitutionality of the Law here

consideration depends on the classification of the act of engagement 10 of government personnel made in the context of expenditure approved in the budget. That the object of the House is the avoidance, in their opinion, of unnecessary expenditure does not alter the nature of the question we must answer. The jurisdiction of the Supreme Court

Art. 15

140 is limited to an expression of an opinion on the constitutionality of the Law referred to it; the answer solely depends on its compatibility with the provisions of the Constitution. It has been authoritatively decided by the Supreme Court 20 in Reference l/84(i) that the employment of government personnel for the execution of the government programme, subject to the expenditure limits set in the budget constitutes administrative action. While the approval of expenditure and its limitation fall within the sphere of jurisdiction 25 of the Legislature, the execution of the approved works, including the employment of the necessary personnel, fall within the exclusive competence of the Executive. As explained by Stassinopoulos

Art. 168.1 of the Constitution, the sole responsibility of the Minister of Finance.

The provisions of the law are inextricably connected between them and form an inseparable whole and for this rea(!) Published in

con­ sideration, like its predecessor, purporting to regulate the 25 engagement of temporary Government Personnel that was judged to be unconstitutional, aimed to confer compe­ tence on the House of Representatives to take part in ad­ ministration, a function that falls

the Constitution within the exclusive jurisdiction of the Executive. 30 Opinion as above. 2164 15