ARTICLE 149(b) .
THE CONSTITUTION (A) GEORGHIOS LADAS AND OTHERS, (B) THE PARLIAMENTARY GROUP
THE DEMOCRATIC PARTY (ΔΗΚΟ) IN THE HOUSE
REPRESENTATIVES, Applicants. (Case Nos. 1061/85 and 1062/85). Constitutional Law—Constitution, Articles 135, 149(b), 72, 78.1 and 73.12—The Supreme Constitutional Court Rules
Court, Rule 15
ambiguity,
regarding the election
the President
the House
Representatives. The applicants in these two cases seek, under rule 15
the Supreme Constitutional Court Rules
Court, the leave
the Court to commence proceedings under Article 149(b) for the interpretation, because
ambiguity,
the Constitution regarding the election
the President
the House
Representatives. Held, Pikis and Kourris, JJ. dissenting:
the Supreme Constitutional Court Rules
Court, which were made under Article 135
the Constitution, lays down that for the commencement
proceedings for interpretation
the Constitution under . Article 149(b) in a case such as the present one, there is required the leave
the Supreme Constitutional Court, now the Supreme Court.
ambiguity
in conjunction with Article 78.1 regarding the election
the President
the House
2831 In re Udas and Others
supreme state importance and the applicants Representatives are directly affected by the interpretation and application
. In the light
the above the applied for leave is granted to the said Representatives. 5
the Democratic Party in the House
Representatives because such group has not yet been constituted by virtue
.2
the 10 Constitution. For the same reason such leave is not granted to the Democratic Party in Case 1062/85. Orderaccordingly. Cases referred to: Republic v. CharaktmbosZacharias,2 R.S.C.C. 1; 15 Muderrisoglouand Others v. The Council
Ministers, 5 R.S.C.C 130. Application. Application by the Representatives
the Democratic Party in the House
Representatives and by the 20 Parliamentary Group
the Democratic Party for leave
the Supreme Court to commence pro ceedings imder Article 149(b)
the Constitution, for the interpretation, because
ambiguity,
the Constitution regarding the election
the President
25 the House
Representatives. P. Polyviou with Chr. Triantafyllides, cants. for the appli Ph. Clerides personally as a Representative and for the other Representatives
ΑΚΕΛ-ΑΡΪΣΤΕΡΑ in the House
Representatives and, also, for ΑΚΕΛ as a political party which is represented in the House
Representatives. 30 M. Christophides personally as a Representative and for the others, except Mr. A. Markides, Represen- 35 tatives
the Democratic Rally (ΔΗΣΥ) in the House
Representatives. 2832 3 CL.R. In re Ladas and Other· A. Markides personally as a Representative and for the Democratic Rally (ΔΗΣΥ) as a political party which is represented in the House
Representa tives. 5 E. Efstathiou and D. Eliades personally as Represen tatives and for the other Representatives
Σ.Κ. ΕΔΕΚ in the House
Representatives and, also, for Σ.Κ. ΕΔΕΚ as a political party which is repre sented in the House
Representatives. 10 TRIANTAFYLLIDES P. read the following decision
the Court: In these two cases which were filed, on the 23rd December 1985, before the Supreme Court, which exer cises, also, the jurisdiction
the Supreme Constitutional Court, the applicants seek, under rule 15
the 15 Supreme Constitutional Court Rules
Court, the leave
the Supreme Court to commence proceedings, under Arti cle 149(b)
the Constitution, for the interpretation, be cause
ambiguity,
the Constitution re garding the election
the President
the House
Re20 presentatives. All Representatives who are the applicants (Al -16) in case 1061/85 are the Representatives
the Democratic Party in the House
Representatives. Pursuant to directions given by the Supreme Court an 25 opportunity was afforded to all the Representatives
ΑΚΕΛ-ΑΡΙΣΤΕΡΑ,
the Democratic Rally (ΔΗΣΥ) and
Σ:Κ. ΕΔΕΚ in the House
Representatives, as well as to ΑΚΕΛ, to ΔΗΣΥ and to Σ.Κ. ΕΔΕΚ as political parties which are represented in the House
Representatives, to 30 express their views in respect
the leave which the appli cants seek. The hearing
these cases before the Supreme Court took place on the 24th December 1985 and in relation to both
them there is now given the following unanimous 35 judgment
the majority
the Members
the Court(M. Triantafyllides, A. Loizou, Y. Malachtos, D. Demetriades, A. Loris and D. StyHanides): 1. The Supreme Constitutional Court Rules
Court were made under Article 135
the Constitution and rule 2833 Triantafyllides P. In re Ladas and Others
the said Rules
Court lays down that for the commencement
proceedings for interpretation
the Constitution, under Article 149(b)
the Constitution, in a case such as the present one, there is required the leave
the Supreme Constitutional Court, and now
the 5 Supreme Court. 2. It seems that there arises for examination a matter
ambiguity
the Constitution in conjunction, as the applicant Representatives contend, with Article 78.1
the Constitution, regarding the election
the President 10
the House
Representatives. The House
Representatives decided unanimously, on the 12th December 1985, to refer the aforesaid matter to the Supreme Court and though such decision was not implemented it was not revoked but was only suspended on the 19th December 1985. 15 3. The election
the President
the House
Representatives is a matter
supreme state importance and the applicant Representatives are directly affected by the interpretation and application
the Constitution regarding the election
the President
the House
20 'Representatives. 4. In view
all the foregoing the applied for leave
the Court is granted to the applicant Representatives in case 1061/85 for the commencement
proceedings under Article 149(b)
the Constitution. There is not granted, 25 however, the leave applied for in case 1061/85 by the applicants Representatives as constituting the Parliamentary Group
the Democratic Party in the House
Representatives because such Group has not yet been constituted by virtue
.12
the Constitution, and for the 30 same reason such leave is not granted to the Democratic Party in case 1062/85 which is, consequently, dismissed. 5. The Supreme Court prescribes as follows the further proceedings in case 1061/85: (a) The application under Article 149(b)
the Constitu- 35 tion on the part
the applicant Representatives should be filed and served today, through the House
Representatives, on all other Representatives. (b) The hearing
the case is fixed for tomorrow, the 2834 3 C.L.R. In re Lade· and Other· Trlantafyllide· P. 28th December 1985, at 10 a.m. PIKIS J.: The group
Representatives
the Democratic Party, 16
the 56 Members
the new House
Representatives, applied for leave to file an application for 5 the interpretation
the Constitution that provides for the election
the President
the House. The application is based on Article 149(b)
the Constitution that lays down that the Supreme Court has exclusive jurisdiction to interpret the Constitution in case 10
ambiguity. The remaining Members
the House, belonging to the other Parties, opposed the application basically for two reasons, because: ts
Representatives is in the process
solving the problem that has arisen in relation to the election
the President
the House, and
the Supreme Court. 20 The regulation
matters referrable to the composition and functioning
the House
Representatives constitute, in their submission, a privilege
the House. The Court would be only justified to render an interpretation
the provisions
(b) when the House
Repre25 sentatives itself as a collective body seeks the interpretation
the Constitution as a necessary prerequisite for the exercise
the powers vested in it under the Constitution. After due consideration
the subject, here under con30 sideration, I have reached the conclusions recited hereinafter in synopsis. The full text
judgment will be available in a few days; it will be filed with the Registry
the Supreme Court and copies will be distributed to the interested parties: 35
the Constitution is a substantive provision
the Constitution that specifies the organ
the State with jurisdiction to interpret the Constitu2835 ύ. In re Ladas and Others
ambiguity
its provisions. This com petence was assigned to the Supreme Constitutional Court (transferred in 1964 to the Supreme Court under Law 33/64) in contradistinction to other Courts or authorities
the Republic. The absence
any re- 5 ference in Article 149 (b) to litigants and procedural measures was not accidental but aimed to emphasize the Jurisdictional character
this article
the Con stitution, Comparison
the provisions
(b) with those
, 138, 139, 140, 141, 10 142, 143, 144, 146 and 147
the Constitution,• that make specific reference to the authorities or persons in whom a right
recourse to the Supreme Constitu tional Court vests and the time within which it must be exercised, reinforces the view that Article 149(b) 15 is exclusively a jurisdictional provision. In any case it has been decided by the Supreme Con stitutional Court in the case
Republic v. Charalambos Zacharia, 2 R.S.C.C, p.l, that invocation
the jurisdiction for interpretation
the Constitution, is 20 only justified where absolutely necessary for the reso lution
a dispute that has arisen. Granting leave, at this stage, while the House
Representatives is in the process
solving the matter
election
President
the House in opposition to the will
the majority 25
the Members
the House
Representatives, would undermine the self-existence and autonomy
the legislative power and would disturb the principle
separation
powers. In the case
Muderrisoglu and Others v. The Councilof Ministers, 5 R.S.C.C, 30 130, the Supreme Constitutional Court unanimously refused to recognize the Turkish Members
theHouse as an organ
the Republic and dismissed their ap plication for examination
alleged violations by the Council
Ministers
the competence
the House 35
Representatives. Notwithstanding the fact that the decision was given in a recourse under Article 139, the principles adopted therein in relation to the status
a,group
Representatives apply in • every-other case; no group
Representatives constitutes a sepa- 4 0 rate entity or organ
the State. 2836 3 C.L.R. In re Ladas and Outers Pikis J. It was stressed in the above case that Members
the House
Representatives whose rights are prejudiced are not remediless. The Constitution provides mechanism for the protection
the rights
Members
the House and the 5 entrenchment
the rule
law. In the present case no suggestion was made that the rights
the applicants or those
anyone
them were in any sense injuriously affected. Where the constitutional legislator intended to confer a 10 right
recourse to the Supreme Court on a segment
1 the House
Representatives independently
the House as a collective organ, it said so expressly as in the case
the Constitution that confers a right on the one fifth
the Representatives
a newly elected House 15 to seek the decision
the Supreme Court as to the existence
"urgent and exceptionally unforeseen circumstances*', justifying the taking
any decision under Article 68
the Constitution. 20 25
provisions
the Constitution is an extraordinary measure justified only in exceptional circumstances. Otherwise the role
the Court would be extended far beyond the established framework
its jurisdiction, that is, the resolution
judicial disputes. It is not the work
the Court to furnish apriori guidance to the other two powers
the State in the exercise
their competence. (Further reasons for the judgment given on 27.12.85). In the judgment given on December 27, 1985, I outlined 30 the reasons for refusing leave to 16 Representatives
the Democratic Party to apply, under Article 149Cb), for the resolution
alleged ambiguities in Article 72
the Constitution, indicating at the same time that comprehensive reasons for the judgment would soon be delivered. In fulfil35 ment
that obligation the following decision is given that should be read as a part
the aforesaid judgment. The brevity
time between reservation
judgment and its delivery made impossible a comprehensive statement
the reasons in support thereof. 2837 Pikis J. In re Ladas and Others
jurisdiction to invoke the provisions
(b) outside the framework
extant legal proceedings. (b) Inamenity to assume jurisdiction under Article 149 (b), unless resolution
an ambiguity in the Constitution is material for the determination
a concrete and definable dispute that has arisen. 5 (c) Undesirability
avoiding an apriori interpretation
the Constitution. A comprehensive exposition
my reasons for the above decision is given below. ARTICLE 149(b)
THE CONSTITUTION— COMPASS AND EFFECT. ITS Article 149(b) does not in terms confer a right to seek 15 an interpretation
the Constitution unless resolution
an ambiguity in a constitutional provision is essential for the determination
a judicial proceeding. The wording used to introduce Article 149 "The Supreme Constitutional Court shall have exclusive jurisdiction"—strongly suggests 20 it is a substantive enactment, solely intended to denote the authority
the State vested with jurisdiction to resolve an ambiguity. Paragraph (b)
reads: "(
ambiguity, any interpre- 25 tation
the Constitution due regard being had to the letter and spirit
the Zurich Agreement dated 11th February, 1959 and the London Agreement dated 19th February, 1959." The word "exclusive" aims to indicate the organ
the 30 State possessed
jurisdiction to resolve constitutional ambiguities in contra distinction to any other' judicial body or Authority
the State. Observations in decisions
the Supreme Constitutional Court reinforce the view that Article 149 is solely designed to earmark the body vested with S$ competence to interpret the Constitution in case
ambi2838 10 3 C.L.R. In re Ladas and Others Pikis J. guity. As much was specifically stressed in NicosPelides And The Republic (Council
Ministers and Another)*. Article 149 must be read and applied in the context
the constitutional division
judicial power between the 5 Supreme Constitutional Court on the one hand and, the High Court and courts subordinate thereto, on the other. The Supreme Constitutional Court was entrusted with jurisdiction in matters
constitutional and administrative law, while the High Court and courts inferior thereto with juris10 diction in the domain
civil and criminal law. The case
Osman Saffet and CyprusPalestinePlantationsCo. Ltd. and Another^, exemplifies the circumstances in. which a valid recourse to the provisions
Reference under Article 149(b) was made to the Supreme 15 Constitutional Court by a district court to interpret the provisions
.3
the Constitution in view
the ambiguity inherent thereto as to the composition
a civil court where one
the litigants was a juristic entity, that is, a company. An interpretation
the provisions
20 Article 149.3 was furnished in order to guide the competent judicial authorities to determine the composition
the district Court. In the Cooperative Grocery
Vasilia Ltd. andCharalambos N. Ppirouand Others^,it was made abundantly'clear that only the Supreme Constitutional Court 25 Was vested with jurisdiction under Article 149(b) to clarify• constitutional provisions fraught with ambiquity to the exclusion
any other Court
the Republic. Article 149 is, it appears to me, a jurisdictional enactment intended to distinguish the judicial body vested with competence to 30 resolve ambiguities in the Constitution to the exclusion
any other Court or Authority
the Republic. The attempt
the constitutional legislator to specify that only a judicial body would have jurisdiction to interpret the Constitution, was not superfluous. Some countries acknowledge jurisdiction 35 to interpret the law to non judicial authorities as, indeed, it is the case with the Constitutions
Greece
1952* and 19755, that provide that the authentic interpretations 1 3 R.S.C.C.
laws is a competence
the legislature. Article 149(b) is not an isolated provision in its effect, but conforms to the pattern
separation
powers enshrined in the Constitution, acknowledged by the Supreme Court as "the bas^s
our constitutional structure"!. Consistenily with our scheme
separation
powers underlying our Constitution, it has been repeatedly held that the interpretative function
the Constitution, and laws made thereunder, is the exclusive province
the judiciary2. 5 In Re Georghiou*I intimated that Article 149 cannot 10 be invoked outside the context
a substantive conflict. More extensively, the ambit
Georghiou*. Although there are dicta that tend to suggest that Article 149(b) may confer adjectival rights too, outside the context
extant legal pro- 15 ceedings, they are obiter because in that case a definite dispute had arisen as to the implementation
a judicial order whereby a Representative was sentenced to imprisonment. The discussion
(
recourse to the Court, is the one given in Case No. 6/62 (unreported)
the Supreme Constitutional Court, whereby leave was given to the Vice-President
the Republic to 25 institute a recourse for the interpretation
certain provisions
the Constitution. The case was brought to our knowledge by the learned President
the Court who had a recollection
the case as he was, at the time, a Member
the Supreme Constitutional Court. 30 Leave was granted upon an ex parte application and as 1 Keramourgia tAIAS» Ltd. v. Yiannakis Christoforou
Greece,
the Privy Council in Chokolingo v. A-G
Trinidad [1981] 1 All E.R. 244. 247, 248. 3
application
all discussed before the Court. Certainly, the Court did not aim to furnish an authoritative interpretation
the compass and ambit
5 Moreover, the Rules made by the Supreme Constitutional Court under Article 135
the Constitution, cannot be read but subject to the Constitution. It is subject to this reservation that r. 15
the Rules must be read and applied. No rule
Court can be enacted beyond the limits 10
the enabling legislation, in this case Article 149(b)
the Constitution. Comparison
with other articles found in the same part
the Constitution, Part IX, remove any doubt that might be entertained as to the exclusive juris15 dictional character
this article
the Constitution. It is evident from the provisions
Articles 137, 138, 139, 140, 141, 142, 143, 144, 146 and 147 that, where the constitutional legislator intended to confer a right
recourse to the Court in furtherance to a particular provision
the 20 Constitution, it stated this to be the case, expressly. It is no accident that in Article 149 (b) there is total absence
any reference to a right
action. To my comprehension this is the first case that the Court is required to define the juristic effect
(b) 25
the Constitution. For the reasons indicated above, I am clearly
opinion it is a substantive provision, solely designed to indicate the Authority
the State vested with jurisdiction to resolve ambiguities
the Constitution. It does not confer any independent right
action. 30 RECOURSE TO THE SUPREME WHEN JUSTIFIED. COURT- Even if I were to hold that Article 149(b) made possible invocation
its provisions outside the context
pending legal proceedings, there would still be insuperable obsta35 cles to assumption
jurisdiction in this case for the reasons given below. The principal function
courts
law is the resolution
defined legal disputes! Courts
law are not advice2841 Pikis J. In re Ladas and Others
his rights. In Republic and P. Loftis* the Supreme Constitutional Court emphasized that Article 149 can only be invoked if reso lution
a constitutional ambiguity is material for the determination
a particular dispute2. 5 As we have been informed the newly elected House
Representatives is presently engaged in a process
devising, an appropriate solution to the problem that has arisen, that is, the election
the President
the House
Represen- 10 tatives. No decision has been taken on the subject and, therefore, no dispute exists as to the validity
any decision
the House. To grant leave and assume fursidiction to interpret Article 72 in the absence
any dispute as to the validity
any act
the Representatives or the House, IS would be contrary to authority and wholly unjustified. Further, assumption
jurisdiction to interpret the Con stitution in order to guide the body in opposition to the will
the majority
the Representatives, would under mine the self-existence and autonomy
the House and 20 disturb the principle
separation
powers. Significantly, in Orhan Muderrisoglou And Others and the Council
Ministers*, the Supreme Constitutional Court refused to recognise the Turkish Representatives as an organ
the Republic and dismissed their recourse for alleged violation 25
the competence
the legislature by the Council
Mi nisters. The principle behind that decision is that the so vereignty
the legislature is indivisible and cannot be fragmented into its component parts.
course, the deci sion in the above case related to a recourse under Article 30 149 but the principle adopted applies with equal force to every other case; namely, that no group
Representatives constitutes a separate entity or an organ
the Republic. In case
violation
their rights the Representatives are not remediless, as the Court observed in the above case. 35 The Constitution provides approriate mechanism for the ι
injured rights
Representatives and the entrenchment
the rule
law. The right
access to the Court, as stated in Attorney-General
Trinidad v. McLeod*is safeguarded so long as the judicial system 5 affords a procedure whereby the person interested in establishing the invalidity
a purported law or decision can have recourse to the courts
justice "in which the plenitude
the judicial power
the State is vested" for a declaration
invalidity that will be binding on the legis10 lature. Where the constitutional legislator intended to confer on a segment
the House a right
action, independently
the collective will
the Representatives, it said so expressly in the Constitution, as in the case
.1 15 that vests a right on one fifth
the Members
a newlyelected House to have recourse to the court in order to ascertain whether ".... there exist such urgent and exceptional unforeseen circumstances as to justify a House
Representatives which continues to be in
fice until the 20 assumption
fice
a newly-elected House to make any laws or take any decisions as in Article 68 provided." To recapitulate, even if Article 149(b) made possible recourse to the Court, independently and outside the context
existing legal proceedings, there would be no justi25 fication. for the reasons indicated above, to assume jurisdiction to provide an interpretation
in the circumstances
this case. APRIORI INTERPRETATION
THE CONSTITUTION. 30 The apriori interpretation
the provisions
the Constitution by the judicial Authorities, is, by its nature, an extraordinary* measure to which resort could only be had in exceptional circumstances. Such apriori interpretation is not intrinsically a judicial function but opinion rendering, 35 ordinarily the task
legal advisers. The Courts declare the law in order to resolve a dispute as to the validity or justification
a given act, decision or action and, then, remedy any deviation from the law or infringement
l [ 1 9 8 4 ] 1 All E.R. 694. 7 0 1 . Letters B - D IPC). 2843 Pikis J. In re Ladas and Others
judicial It is not the function
the Courts to guide the other two powers
the State—the Legislature and the Executive —in the exercise
their respective competence; if this 5 were to happen we would come close to government by the courts, a position contrary to the spirit and letter
the Constitution. Members
both the Legislature and the Executive give, before assuming
fice, an affirmation
respect for the Constitution and laws made thereunder (see Arti- 10 cles 69 and 59.4, respectively). We cannot but presume consistently with the presumption
legality that they wiil operate within the limits
their power and in accordance with the Constitution and laws made thereunder. Therefore, to assume jurisdiction to guide them in the discharge
15 their duties by furnishing an apriori interpretation
provisions
the Constitution, as required in this case, would be nothing less than a denial
this presumption in the case
Members
the House
Representatives. If we were to entertain the present application, we would 20 be establishing a very dangerous precedent involving the acknowledgment
a right to a minority
members
collective organs
the State, such as the House
Representatives and the Council
Ministers; to have recourse to the Court with a view to forestalling what they 25 foresee to be a decision disagreeable to them. Such a precedent would undermine, I repeat, the sovereignty and autonomy
the other two powers
the State to the detriment
the doctrine
separation
powers. Koi.'RRis J.: I agree with the judgment
Pikis, J., and for the same reasons I dismiss the application for leave to file a recourse under Article 149(b)
the Constitution. I am
opinion, in agreement with Pikis, J., that granting leave under the circumstances
the present case would create an unjustified precedent in the exercise
State powers. 30 35 Order accordingly. 2844
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