clr/1986/1986_3_203.pdf

(1)of the National Guard Laws 1964-1984 to the Minister of Interior (decision 690 of the 7.9.67)—Such delegation is an administrative act—// follows that such delegation cannot hi cancelled or varied by the Legislature— The attempt to do so bv s. 10

(3)of Law 22178 was wholly ineffective. The National Guard Laws 1964-1984 10 543/85). s.9(c). The Statutory Functions (Conferment of Exeicise) Taw 23/62. Administrative Law—Reasoning of an administrative act— // can he derived from the file and the whole record of administrative process—Especially in <r*vv of discretionary powers. 15 Administrative Law—Due inquiry. On 12.1.83 the applicant was drafted in the National Guard and on 24.5.83 he was temporarily discharged for one year on grounds of health. On 25.5.84 he was redrafted, but on 31.5.84 he was once again .temporarily dis203 Alexandrou v. Republic

(1986)charged for health reasons. On 1.12.84 the applicant rejoined the National Guard. On 21.5.85 he submitted to the Ministry of Defence an application for his discharge from the National Guard under s.9(l) of the National Guard Laws 1964-1984. The reasons set out in support of the said application were the applicants' financial and psychological problems. It was for these same pchychological problems that the applicant was previously temporarily discharged from the National Guard as aforesaid. 5 The Advisory Committee set up under s.4

(4)of the 10 National Guard Law 20/64 as amended by Law 14/66 advised the Minister (respondent 2) that there were no special reasons justifying the discharged of the applicant. The Minister agreed with the advice and refused to discharge the applicant. 15 Hence the present recourse. The legal grounds on which the recourse was based were inter alia that the sub judice decision was not duly reasoned, that it was not taken after a due inquiry and that it was taken by an incompetent administrative organ. It should be noted that the recourse as against the first respondent was withdrawn and dismissed. Held, annulling the sub judice decision (I) The reasoning of an administrative decision, especially in cases of discretionary powers, can be derived from the relevant file and from the whole record of the administrative process (The Republic v. Myrtiotis

(1973)3 C.L.R. 484 at p. 488 applied.) In the light of all the material before the Court there does not exist lack of due reasoning in this case. 20 25

(2)In taking the sub judice decision the respondent Minister did not rely only on the material which he had before him on the previous occasions when he temporarily discharged the applicant from the National Guard, but he also relied on a report by a Welfare Officer dated 4.3.85 35 and on the record of the applicant's service from the moment of his enlistment to the National Guard. It follows that there has been a due inquiry. 204 30 3 C.L.R. 5 10 15 20 Alexandrou v. Republic

(3)The Council of Ministers by their decision 690 of the 7.9.67 delegated its compelency under s. 9(c) of the National Guard Laws to the Minister of Interior. This delegation, apparently, is one that has been made by virtue of the Statutory Functions (Conferment of Exercise) Law 23/62. Section 10

(3)of Law 22/78 which is a Law amending the National Guard Laws provided that "Every act of delegation presently in force made by the Council of Ministers respecting power vested in it under the basic law whereby the exercise of the power is delegated to the 'Minister' that is the Minister of Interior will be treated as having been made to the Minister of Defence." The delegation made by the decision 690 of the Council of Ministers of its powers under s. 9(c) of the National Guard Laws is an administrative act and as such it could not be cancelled or varied by the legislative Authorities. The attempt to do so by s. 10

(3)of Law 22/78 was wholly ineffective. It follows that the only competent organ to deal with the application for the discharge of the applicant was the Minister of Interior in accordance with the delegation made to him by decision 690 of the Council of Ministers. Sub judice decision annulled. Respondent

(2)to pay half of applicant's costs. 25 Cases referred to: Soteriades v. The Republic

(1977)3 C.L.R. 52; The Republic v. Myrtiotis

(1975)3 C.L.R. 484; 30 President of the Republic v. House

(1985)3 C.L.R.

1. of Representa'ives Recourse. Recourse against the refusal of the respondents to d ; scharge applicant from the National Guard. 35
2. Constantinou (Miss), for E. for the applicant. A. Vladimirou, Eftychiou, for the respondent. Cur. adv. vult. 205 Alexandrou v. Republic

(1986)KOURRIS J. read the following judgment. The applicant by the present recourse prays for a declaration that the refusal of the respondent to discharge him from the National Guard, communicated to him by letter of the Director-General of the Ministry of Defence dated 23rd March, 1985, is null and vr>jH and of no effect. 5 The recourse against the Council of Ministers who are respondents

(1), was withdrawn and dismissed. The applicant, Kyriacos Alexandrou, was born on 24.11.1965 in England from Cypriot parents who re- 10 established themselves in Cyprus when he was three years old. On 12.1.1983 he was drafted in the National Guard and on 24.5.83 he was temporarily discharged for one year on grounds of health and on 25.5.84 he was called up again to serve his term in the National Guard. On 15 31.5.84 the. applicant, again for health reasons, was temporarily discharged for six months and he rejoined the National Guard on 1.12.84 and he is still serving in the National Guard in order to complete his 26th month service. 20 On 21.1.85 counsel for the applicant submitted to the Ministry of Defence an application by which he was asking for the discharge of his client from the National Guard for special reasons under s.9

(1)of the National Guard Laws 20/64 and laws 1964- 1984. 25 In a nutshell the reasons set out in the letter of cuunsel were mainly financial and psychological problems of the applicant. It is stated ilut on 2.9.84 the applicant got married to a certain Chaido Papadopoullou, a refugee from Sysklipos of Kyrenia District, and the couple tried to 30 establish their matrimonial home and for this purpose they incurred considerable debts which they tried to pay off by their work. With the redrafting of the applicant in the National Guard the couple was deprived of the wages of the applicant and the wife is not in a position to pay off the 35 debts by her work and there is a likelihood the matrimonial home to collapse. With regard to the psychological problems of the appli206 3 C.L.R. 5 10 Alexandrou v. Republic Kourris J. cant it is stated in the letter that the applicant had a diffi­ cult childhood because his parents were divorced when he was in his tender years and they showed no interest for him. It is for these psychological problems that the applicant was temporarily suspended from the National Guard. On 15.3.85 the Advisory Committee examined his appli­ cation who, in turn, advised the Minister of Defence that there were no special circumstances to justify the discharge of the applicant. This Advisory Committee was set up under s. 4, subsection

(4)of the National Guard Law, 1964 (Law 20/64 as amended by law 14/66) which, having accepted the facts -as stated in the above letter, advised the Minister accordingly. The Minister of Defence examined the application who 15 on 20.3.85 agreed with the suggestion of the Advisory Committee and a letter to this effect was addressed to the counsel of the applicant on 23.3.85 (Vide exh. 1). Hence the present recourse. 20 2fi 30 35 The legal grounds on which the recourse is based arc that the decision was taken (

1. a)without due reasoning, (
2. b)without due enquiry, (
3. c)under a misconception οΓ facts, (
4. d)by an incompetent administrative organ and (
5. e)the decision was taken in excess and abuse of authority. The respondents opposed the recourse and contended that the decision was rightly taken by the respondent having properly exercised his discretion. Counsel for the applicant suggested that there is ab­ sence of due reasoning because the reasoning in the letter (Vide exh. 1), is vague and general and in view of the decision of Soteriades v. The Republic

(1977)3 C.L.R. 52 the decision ought to be annulled. The answer of the respondent is that the reasoning can also be derived from the relevant file which is the personal file of the applicant which is exh. 3 before the Court, and from the whole record of the administrative process. Τ agree with counsel for the respondent that in the light of all the material which is now before me, it would not 207 Kourris J. Alexandrou v. Republic

(1986)be correct tp.say that there exists lack of due reasoning vitiating the, sub judice decision. Vide the case of the The Republic of Cyprus v. Panayiotis Myrtiotis

(1975)3 C.L.R. 484 at p. 488 where Triantafyllides. P., in delivering the judgment of the Court had this to say:- 5 "In the light of all the material which is now before us, and having in mind that, as stated by Dendias in his textbook on Administrative Law, 5th ed., vol. A. p. 151, the reasoning for an administrative decision, especially in cases of exercise of discretionary powers, 10 can be derived from the relevant file and from the whole record of the administrative process (εκ του φακέλλου της υποθέσεως και εκ του συνόλου της διοικητικής ενεργείας), we are of the view that it would not be correct to say that there exists lack of due 15 reasoning vitiating the decision of the Committee to promote the interested parties". The second point is absence of due inquiry. The allegation of the applicant is that the Advisory Committee and the Minister have not made a due inquiry 20 with regard to the new material which the applicant placed before them and that the Minister relied only on the ma­ terial which he had before him on the previous occasions when the applicant was temporarily suspended from the National Guard. This allegation of the applicant cannot 25 stand because upon receipt of the letter, exh. 2. they asked for a new report from the Welfare Office and a Welfare Officer prepared one which is dated 4.3.85 and which is in the file of the applicant indicating that this report was prepared subsequent to the letter exh. 2, addressed to the 30 Minister. Further, in the file there is the record of the ap­ plicant's service from the moment he enlisted in the Na­ tional Guard and which is red 9 in the file. Bearing in mind the above, I am of the opinion that there has been a due inquiry. 35 In view of the above the allegation of the applicant that there has been a misconception of facts cannot stand. It has been argued by learned counsel for the applicant in his reply to the written address of the respondent that 208 3 C.L.R. Alexandrou v. Republic Kourris J. the sub judice decision could be annulled on the ground of lack of competence or jurisdiction for the following rea­ sons:- He said that the competent organ for dealing with the applications under s. 9

(1)of the National Guard Laws 5 is the Council of Ministers unless by their decision confer authority to one of the Ministers. The Council of Ministers by their decision No. 690 of the 7th September, 1967 authorised the Minister of Interior to release under the provisions of the aforesaid section servicemen in exceptional 10 circumstances for family reasons. A photocopy of the deci­ sion of the Council of Ministers is attached to the written address of counsel for the respondents. This authorisation, apparently, is one that has been made by virtue of the provisions of the Statutory Functions (Conferment of Bxer15 else) Law, 1962 (No. 23 of 1962). 20 25 30 35 He went on to say that no such conferment of authority has been made by the Council of Ministers to the Minister of Defence in respect of its powers under s. 9

(1)of the law, that is, the Council of Ministers did not authorise by their decision the Minister of Defence to act in respect of its powers under s. 9

(1)of the law. This conferment of authority has been given by virtue of s. 10

(3)of law 22 of 1978 a law amending the National Guard laws which states as follows:«Πάσα νυν εν ισχύϊ εκχώρησις υπό του Υπουργικού Συμβουλίου εξουσίας, ην κέκτηται δυνάμει του βασι­ κού νόμου, γενομένη εις τον Ύπουργόν' ήτοι τον Υπουργόν Εσωτερικών, θεωρείται ως γενομένη εις τον Υπουργόν Αμύνης». Translated in English reads as follows:"10

(3)Every act of delegation presently in force made by the Council of Ministers respecting power vested in it under the basic law whereby the exercise of the power is delegated to the 'Minister' that is the Minister of Interior, will be treated as having been made to the Minister of Defence". He argued that in view of the provisions of Articles 54, 61 and 179 of the Constitution the House of Representa209 Kourris J. Alexandrou v. Republic

(1988)tives trespassed into the sphere of powers of the Council of Ministers which is the only competent organ to exercise executive power under s. 9

(1)of the law. He submitted that this tresspass eonltavened the separation of powers and is repugnant to the said articles of the Constitution and it 5 is. therefore. iinconititutional;consequently the Minister of Defence was not competent to take the sub judice decision. In many respects it is a novel point not covered, so far as I know, by any previous decision. The point which poses for detern'i'nation is this:- Is it competent for the Legis- 10 latnre to cancel, vary or modify an act of delegation of the excrc'sc of Administrative Power? The answer is in the ncga;i\e, for this would involve violation of the separation between Legislative and Executive Power of the State. The power to discharge for special reasons national 15 guards vested by s. 9

(1)of the National Guard Laws 20/64 and Laws 1964-1984 in the Council of Min:sters is exclusively a competence of Administrative Power. The delegation by the vestees of Administrative competence to a sub-oigan as in this case where the competence of the 20 Council of Ministers in this area was delegated to th. Minister of Interior under the provisions of the Statutory Functions (Conferment of Exercise) Law, 1962 (No. 23/ft2) is likewise an administrative act. As such it cou'd not be cancelled or varied by the Legislative Authorities (Reference 25 No. 4/85 The President of the Republic v. The House of Representatives not yet reported). The attempt to do so by s. 10

(3)of Law 22/78 was wholly ineffective. This being the case, the application for discharge was dealt with by an incompetent authority i.e. the Minister of 30 Defence, whereas the only competent officer was the Minister of Interior. For these reasons the recourse succeeds and the sub judice decision is declared null and void and of no effect. Bearing in mind that the applicant succeeded against * Now reported in

(1985)3 C.L.R. 2165 210 35 3 C.L.R. Alexandrou v. Republic Kourris J. respondent

(2)only, having withdrawn his recourse against respondent

(1)in the exercise of my discretion, I order the respondent

(2)to pay half of the costs of the applicant. Costs to be assessed by the Registrar. Sub judice decision annulled. Order for costs as above, 211