3 C.L.R. 15 Μαίου 1986 [ Τ Ρ Ι Α Ν Τ Α Φ Υ Λ Λ Ι Δ Η Σ . Π α , Α. Λ Ο Τ Ζ Ο Υ . Μ Α Λ Α Χ Τ Ο Σ . ΔΗΜΗΤΡΙΑΔΗΣ. ΣΑΒΒΙΔΗΣ, ΛΩΡΗΣ, ΣΤΥΛΙΑΝΙΔΗΣ. Π Ι Κ Η Σ , Κ Ο Υ Ρ Ρ Η Σ . Δ.Δ.] ΑΝΑΦΟΡΙΚΑ ΜΕ ΤΟ Α Ρ Θ Ρ Ο

Article 140

of the Constitution—It can only be made in relation to a "law" or "decision" in the sense of Article 52 of the Constitution. Constitutional Law—Council of Ministers—Power to make regulations

Article 54(g) of the Constitution—Nature of such power.

Constitutional Law—Subsidiary legislation—The Cyprus Broadcasting Corporation Law, Cap. 300 A—Section 19 as amended by section 2 of Law 68/85—Regulations made by the Council of Ministers and placed before the House 10 of Representatives pursuant to such section—Decision of the House amending said regulations—The said regulations continued to be subsidiary legislation emanating from the Council of Ministers—They cannot be promulgated

Article 52

of the Constitution, but should be 15 published

said section. The Council of Ministers decided, on the 12.9.85, to make the Cyprus Broadcasting Corporation (Equitable Treatment of Political Parties and Candidates) Regulations and to place them before the House of Representa- 20 tives, pursuant to section 19 of Cap. 300 A as amended by section 2 of Law 68/85. 1168 5 3 C.L.R. President of Republic v. House of R'ntatives On the 31.10.85 the House of Representatives amended the said Regulations. On the 1.11.85 the Regulations were transmitted for publication to the

-Secretary to the President. 5 On the 13.11.85 the President of the Republic filed the present reference for the opinion of the Court whether the said decision of the House is repugnant to or inconsistent with Arlicles 19, 28, 35, 52, 54, 58, 61, 82 and 179 of the Constitution. 10 Held, dismissing the reference: (A) Per Triantafyllides, P., A. Loizou, Malachtos, Demetriades, Savvides, Loris and Stylianides, Si.; (I) The exercise by the Council of Ministers of its power to. make regulations

Article 54

(g) of the Constitution does not amount to the exercise of autonomous legislative power hut it is the exercise of subsidiary legislative power pursuant, to the legislative authorization given to it on each occasion by a Law of the House of Representatives. IS 20

Artice 52 of the Constitution, but is to be published as provided by s. 19 of Cap. 300 A as amended by s. 2 of Law 68/85. 25

Article 140can oniy be made in relation to such "law" or "decision". 30 (B) Per Pikis, Kourris, JJ. concurring:

Article 52

is confined to primary legisla­ tion and decisions of the House of Representatives spe­ cifically referred to in the Constitution and as the juris- 10 diction

Article 140

is confined to such laws or decisions, this Court lacks jurisdiction to take cognizance of the present reference. Reference dismissed. Cases referred to: 15 Presidentof the Republic v. The House of Representatives Π985) 3 C.L.R. 2165. Reference. Reference by the President of the Republic for the opinion of the Supreme Court whether the decision of the 20 House of Representatives which was taken on 31.10.1985 and was forwarded on 1.11.1985 for publication/promul­ gation by the President of the Republic whereby the Cyprus Broadcasting Corporation (Equitable Treatment of Parties) Regulations of 1985 amending the Regulations 25 made by the Council of Ministers and placed before the House, is repugnant to, or inconsistent with the provisions of Articles 19, 28, 35, 52, 54, 58, 61, 82 and 179 of the Constitution. L. Loucaides, Deputy Attorney-General of the Republic with Fr. Parrisiadou (Mrs.), Senior Coun­ sel of the Republic, for the President of the Republic. 30 M. Christophides, for the House of Representatives. Cur. adv. vult. TRIANTAFYLLIDES P. read the opinion of the Court: On the 13th November 1985 the President of the Republic 1170 35 3 C.L.R. President of Republic v. House of R'ntatives Triantafyllides P. 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 31.10.1985 and was forwarded on 1.11.1985 for 5 publication/promulgation by the President of the Republic

Article 52of the Constitution, and .

by means of which there were approved the Cyprus Broadcasting Corporation (Equitable Treatment of Parties) Regulations of 1985, amending the Broadcasting Corporation (Equitable 10 Treatment of Political Parties and Candidates) Regulations of 1985, which were made by the Council of Ministers . on 12.8.1985, is repugnant to, or inconsistent with, the provisions of Articles 19, 28, 35, 52, 54, 58, 61, 82 and 179 of the Constitution". 15 The Council of Ministers decided, on the 12th September 1985, to make the Cyprus Broadcasting Corporation (Equitable Treatment of Political Parties and Candidates) Regulations of 1985 and to place them before the House of Representatives, pursuant to section 19 of the Cyprus 20 Broadcasting Corporation Law (Cap. 300A), as amended by section 2 of the Cyprus Broadcasting Corporation (Amendment) Law, 1985 (Law 68/85). On the 31st October 1985 the House of Representatives amended the said Regulations and on the 1st Novem>-5 ber 1985 the Director-General of the House of Representatives transmitted them for publication to the

Secretary to the President. 30 35 Before publishing the sub judice Regulations in the Official Gazette the President of the Republic filed the present Reference on the 13th November

1. This case came up before the Supreme Court for directions on the 18th and 19th November 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 of the House of Representatives on the 20th, 21st, 22nd and 23rd January
2. On the 9th April 1986 the Supreme Court heard, through their counsel, arguments on behalf of the Presi1171 Trientafyltides P. President of Republic v. House of R'ntatives

Article 52of *he Constitution.

*> The Supreme Court considered the question referred to it and the unanimous decision of the majority of ;ts Members (M. Triantafyllides, A. Loizou, Y. Ma'achtos, D Demetriades, L. Sawides, A. Loris and D Stylianidcs) is the following: 1. The exercise by 'he 'Council of Ministers of its power to make Regulations,

Article 54

(g) of the Constitution, does not amount to *he exercise of autonomous legislative power but it is the exercise of subsidiary legislative power pursuant to the legislative authorization given to it on each particular occasion by a Law of the House of Representatives. ,0 15 2. The sub judice Regulations were made by the Council of Ministers and, despite the fact that they were amended by the House of Representatives, they continue 20 to be subsidiary legislation emanating from the Council of Ministers, which is not to be promulgated by the President of the Republic by publication in the Official Gazette of the Republic

Article 52

of the Constitution, but is to be published in the Official Gazette of the Republic as 25 provided by section 19 of Cap. 300 A after its amendment by section 2 of Law 68/

2. Thus the said Regulations are not a law or decision of the House of Representatives in the sense of a "law or, decision" of the House of Representatives in Article 52 30 of the Constitution and, therefore, it was not possible to make the present Reference in respect thereof, because a Reference by the President of the Republic,

Article 140

of the Constitution, may be made only in relation to a law or decision of the House of Representatives which is to 35 be promulgated by the President of the Republic by publication in the Official Gazette of the Republic pursuant to Article 52 of the Constitution. 4. In view of the aforesaid the present Reference is 1172 3 C.L.R. President of Republic v. House of R'ntatives Triantafvllides P. dismissed because it could not be made

Article 140of the Constitution.

5 The present Opinion is notified, in accordance with Article 140.2 of the Constitution, to the President of the Republic and to the House of Representatives. PIKIS J.: The judgment of the Court, that is, that part determining the outcome ot the Reference, is unanimous. It is decided, therefore, that the Refeience must be dis­ missed. The Supreme Court lacks jurisdiction to take 10 cognizance of the case for the reason that the Regulations are not a "law" or a "decision" of the House of Repre­ sentatives in the sense of Article 52 of the Constitution. Consequently, their enactment is not dependent on pro­ mulgation in the official Gazette by the President of the 15 Republic, a prerequisite for the exercise of the jurisdiction vested in the Court by Article 140 for the apriori exa­ mination of the constitutionality of laws or decisions, sub­ ject to promulgation. We are unanimous that the Regula­ tions constitute secondary or subsidiary legislation not 20 subject to promulgation

Article 52

. My disagreement with the reasoning of the majority judgment is confined to the identification and specification of the origin of the subsi­ diary legislation. In my view after the amendment and vir­ tual re-writing by the House of Representatives, the Regula25 tions constitute subsidiary legislation enacted by both bodies, namely, the Council of Ministers and House of Representatives. I disagree, therefore, with that part of the reasoning of the majority judgment that characterizes the Regulations as subsidiary legislation emanating from the 30 Council of Ministers notwithstanding their amendment by the House of Representatives. 35 4β The enabling law that confers jurisdiction for the enact­ ment of the subsidiary legislation, the Cyprus Broadcasting Corporation Law (as amended by Law 68/85), vests this power in both bodies, «n inevitable inference from the text of the law, specifically the unlimited power g;vcn to the House of Representatives to amend Regulations pre­ pared by the Council of Ministers. In exercise of this power vested it by the primary legislation, the House of Representatives made substantial amendments to the Regu1173 Pikis J. President of Republic v. House of R'ntatives

Article 140

of the Constitution to pronounce on the constitutionality of laws and decisions is limited by its text to laws and decisions that the President of the Republic is

10 duty to promulgate by publication in the official Gazette

Article 52of the Constitution.

The question is whether subsidiary legislation, that is, legislation not enacted by the House of Representatives in .exercise of its competence for the enactment of primary 15 legislation but by a body or bodies specifically empowered to do so, constitutes a law of the House of Representatives in the sense of Article 52. The answer is in the negative. In accordance with the decision of the Full Bench of the Supreme Court in Reference 4/85(0» the competence 20 of the President of the Republic for the promulgation of laws and decisions of the House of Representatives,

Article 52, does not encompass promulgation of subsidiary legislation.

As I had occasion to explain in the above Reference, the duty to promulgate

Article 52

is con- 25 fined to primary legislation and decisions of the House of Representatives specifically referred to in the Constitution. The participation of the House of Representatives in the composition of subsidiary legislation does not alter its character into primary legislation. And, given that the 30 exercise of the pre-emptive judicial control of the constitutionality of laws and decisions of the House of Representatives is confined to laws and decisions of the House in respect of which there is an obligation to promulgate, the Supreme Court lacks jurisdiction to take 35 cognizance of the present Reference. The Supreme Court is, for this reason, precluded from examining the substantive issues raised in this proceeding, namely, whether it is "> The President of the Republic v. The House of Representatives