clr/1986/1986_3_2505.pdf

(3)(

1. b)and *> (
2. b)of said Regulations and published on 2.4.1976—A regulatory order—Outside ambit of Article 146.1—Neither the Regulations nor the Order can be challenged directly by a recourse. Constitutional Law—Right to exercise a profession—Constitution Article 25—The Electricity (Amendment) Regulations, 1976 (published on 123.1976)—The Order made by the Minister of Communications and Works under regs. 53

(3)(

1. b)and 5(
2. b)and published on 2.4.1976—Not repugnant to or inconsistent with Article 25—Restrictions imposed absolutely necessary in the interests of public safety for the protection of the rights of others and in the public interest. Electricity—The Electricity Law, Cap. 270—Section 2505 10—The Contractors of Electr. Engineers v. Republic Regulations made in virtue of s. 10 and published 12.3.1976—Not tdtra vires enabling enactment. (19G6) on In virtue of its powers under section iO of the Electri­ city Law, Cap. 170 the Council of Ministers enacted the Electricity (Amendment) Regulations 4 . Regulations 53

(3)5 (

1. b)and 5(
2. b)empowered the Minister of Comnumical.'ons and Works to issue Orders prescribing the limits within which certain classes of Electrical Engineers can draw plans and prepare studies. The Minister acting under the said Rcgulatons issued an Order, which was published on 10 12.3.1976, prescribing the limits for !he drawing of plans and studies by (
3. a)Electrical Engineers, third grade. Senior Electricity Technicians and Electrical Apparatus Techni­ cians. This recourse is directed against the validity of the said Regulations and ιhe said Order of the Minister. The ap­ plicants submit'ed inter alia, that the Regulations are re­ pugnant to Article 25 of the Constitution and in any tvent ultra vires section 10 of Cap. 170. 15 Held, dismissing ihe recourse: (
4. l)The test applicable in 20 order to determine ihc nature of an act is not the termino­ logy employed, but ; ts essential nature. The essential na­ ture of the sub judicc Regulations is to regulate legisla­ tively ihe matters referred to therein. It follows that they are of a legislative nature and, therefore, do not come 25 within the ambit of Article 146.1 of the Constitution,

(2)The sub judicc Order of the Minister is a regulatory act creating legal rules of a general application. This is so because the legal content of the Order is not exhausted by one and only application, but it reta ; ns its force to 30 provoke new applications on the undefined and future si­ tuations which have the general prerequisites set out by the act. It follows that the sub judice Order cannot be directly challeged by a recourse under Article 146.1 of the Constitution. 35 these Regulations ware published 'in Supplement III

(1)of tne Official Gazette of 12.31976. Their contents in so far as relevant •π ihi= r^ou-sr, annear n* r>. ?511 post. 2506 3 C.L.R. 5 10 15 Contractors of Electr. Engineers v. Republic

(3)The sub judice Regulations and Order relate ex­ clusively to the qualifications and the conditions required tor the exercise of the profession relating to electrical in­ stallations. Such conditions and qualifications are absolutely necessary in the interests of public safety, for the protection of the rights of others and in the public interest. It follows that the contention that the sub judice Regula­ tions and Order are repugnant to Article 25 of the Con­ stitution fails.

(4)Having regard to the true construction of the en­ abling enactment (Section 10 of Cap. 170) it cannot be held that the sub judice Regulations are ultra vires such enactment. Moreover, in the light of the principles of the decision in the Board of Registration of Architects v. Kyriakides

(1966)3 C.L.R. 640 at 662-663 the applicants were not deprived of any vested right. Recourse dismissed. No order as ti> costs. Cases referred to: 20 Demetriades and Son v. Republic

(1969)3 C.L.R. 557: Papaphilippoit v. Republic, I R.S.C.C. t>2: PASYDY v. Republic

(1978)3 C.L.R. 27; Eagle Automo'.ic v. Repuhlk -r—decided on 9.2.1962 the Supreme Constitutional Court unreported: 25 by Lanitis Farm Ltd. v. Republic

(1982)3 C.L.R. 124: Nicosia Race Club v. Republic

(1984)3 C.L.R. 791: Police v. Hondrou. 3 R.S.C.C. 82: Board of Registration of Architects & Civil Engineer'; v, Kyriakides

(1966)3 C.L.R. 640; Apostolou v. The Republic

(1984)3 .C.L.R- 509. Recourse. 30 Recourse for ο declaration of the Court that the order made by respondent 2 under regulation 53 of the Electri­ city Regulations as well as the Electricity (Amendment) Re2507 Contractors of Electr. Engineers v. Republic gulations, 1976 are null and void whatsoever.

(1985)and of no legal effect N. Papaefstathiou, for the applicants. Λ'. CharaUttnbous, Senior Counsel of the Republic, for the respondents. 5 Α'. Ύalarules, for the interested parties. Cur. adv. vutr. A. Loizou J. read the follow.ng cants in this recourse pray for: judgment. The appli­ "A declaration of the Court that the Order made 10 by respondent 2 under Regulation 53 of the Electri­ city Regulations, published in Supplement No. ΠΪ(Ι) of the Official Gazette of the 2nd April 1976, under Not. No. 1266 as well as the Electricity (Amendment) Regulations of 1976 published in Supplement No. Ill 15 (I) of the Offic:a! Gazette of the 12th March, 1976, under Not. No. 1262, are nu'I and void and of no legal effect whatsoever generally or in the alternative to the extent they affect the electrical installations con­ tractors who were registered prior to their corning in- 20 to operation.'* The recourse was founded on the following grounds of Law:(

1. n)The sub judice order and the Regulations and speci­ : fically regulat ons 5 and 53 offend the vested rights 25 of the Electrical Installations Contractors who were registered prior to their coming into operation be­ cause they restrict the nature and extent of the works ihey were performing by virtue of the pre-existing Re­ gulations. 30 (
2. b)The sub judice order and Regulations were made in excess and/or abuse of powers for the reasons in pa­ ragraph (
3. a)hereinabove mentioned and because they were ultr.i vires section 10 of the Electricity law, Cap. 170 and further they are extremely and unrea- 35 sonably restrictive of the rights of the Electrical In2508 3 C.L.R. Contractors of Electr. Engineers v. Republic A. Loizou J. stallations Contractors to carry out their trade, contravention of Article 25 of the Constitution. in The opposition was based on the following grounds: 5 10 15 20 25 30 35 (
4. a)To the extent that the tecourse challenges the Electricity (Amendment) Regulations 1976 ii cannot be en­ tertained because the said Regulations do not amount to an executory administrative act within the meaning of Article 146 of the Constitution. (
5. b)To the extent that the recourse challenges the order of the Minister of Communications and Works it can­ not be entertained because it does not affect any le­ gitimate interest of the applicants. (
6. c)The sub judicc Regulations were lawfully made and within the framework of the powers vested in the Council of Ministers by virtue of section 10 of the Electricity law, and the sub judice Order was law­ fully made by virtue of Regulation 53 of the Electri­ city Regulations 1941 to 1976. (
7. d)Both the sub judice Regulations and the sub judice Order do net infringe any vested right of the appli­ cants because the latter have never had a right of draw'ng plans. The recourse ν :».i tiled en 29th May 1976. and came up for directions on 16th September 1976, when it was fixed for hearing on 13th December 1976. On this latter date it was rdic'Ji'ncd for mention on the 17th February 1977 en the appl'cation of applicants' counsel because, as he said, "'here η νν be developments which will render, pro­ bably, unnecessary the hearing of this case." For this same reason and at the instance of counsel for the appli­ cants it was fixed for mention on 21st April 1977 and 6th October 1977. On that da'e counsel for the applicants stated "that the Minister of Communications and Works has ap­ pointed a Committee to exam'ne the possibility of amending the terms of th's Order which is the subject-matter of this recourse" rnd reouested that the case be adjourned sine die pending the outcome of this examination; and the Court 2509 A. Loizou J. Contractors of Electr. Engineers v. Republic

(1986)acceded to that request. As no steps had been taken by cither side the Court on the 14th March 1978, acting ex proprio molu, fxed the case for directions on the 13th April 1978. On this date directions for filing written addresses were made and the case was fixed for clarifications on 15th June 5 1978. Though the written address on behalf of the applicants had to be filed within three weeks from the 13th April 1978, it had not been filed by the 23rd March, 1979, in spite of the fact that repeated extensions of time were granted to him for that purpose. It was finally filed on the 10 22r.d November 1985; and the written address of the respondent on the 33th September 1986. In the meantime on the 14th June, 1985 leave was granted to the Associat:on of Licensed Electrical Contractors (POVEK) to take part in the proceedings as an interested party and the address of the lat- 15 ter was filed on the 12th November 1986. The case was fixed for oral clarifications and evidence on the 24th November 1986: and my judgment has been reserved since then. Learned, counsel for the respondents in his written address raised the following preliminary points: 20 (

1. a)That the sub judice Regulations are an act of a legislative content and ^nnnot be directly attacked by a recourse. (
2. b)That the sub judice Order is a regulatory act of a legislative content and cannot be attacked by a re- 25 course. (
3. c)That the applicants are not vested with a legtimate interest because the sub jud'ee acts have not caused any detriment to the applicants. Before dealing with the issues that arise for consideration I will deal shortly with the sub judice Regulations and the sub judice Order. The sub judice Regulations were made by the Council of Ministers in the exercise of its powers under sect'on 10 of the Electricity Law, Cap. 170 and Article 188.3(
4. b)of the Constitution. The main prov'sions of these Regulations are: 2510 30 35 3 C.L.R. 5 io 15 20 Contractors ot Electr. Engineers v. Republic A. Loizou J. (
5. a)That prior to the execution of any electrical installation electroiogical plans and studies should be submitted to the appropriate authority for the approval of the architectural plans with a copy thereof to the Electricity Authority of Cyprus.
6. tb)All c'ecirical installation vvoiks should be executed by registered persons according to the provision of these Regulations. Further by Regu'ation 53 there are set out the qualifications required for the acquisition of a certificate of elig:bility of Electrical Engineer 1st Grade, 2nd Grade, 3rd Grade; and there are. also, set out the electrical works which each one of them can undertake. Also provision is made in Regulation 53

(3)(

1. b)and 5 (
2. b)enabling the Minister of Communications and Works to issue Orders prescribing the Tmits within which ceriain classes of Electrical Engineers can draw plans and prepare studies. The Minister acting under th's Regularion—53—made the sub judice order prescribing the limits for the drawng of plans and studies by (
3. a)Electrical Engineer, third grade, Senior Electricity Technician, and Electrical Apparatus Technician. I will now deal with the prel:minary issues, 25 Preliminary issue: (a)—Whether the sub judice Regulations are of a legislative nature: In Demetriades and Son v. Republic (I9'69) 3 C.L.R. 557 (F.B.) the Supreme Court adopted the following test for ascertaining the nature of an act which was formulated 30 by the Supreme Constitutional Court in the case of Papaphifippou v. Republic 1 R.S.C.C. 62 at p. 64: "The decisive test for ascertaining the legal nature of any act or omission is not necessarily the terminology employed in describing it but its essential nature." 35 Reading "now the Regulations in question we come to one conclusion only: That their essential nature is to regu2511 A. Loizou J. Contractors of Electr. Engineers v. Republic

(1986)late legislatively the matters referred to therein. Therefore they are a piece of legislation. Now since the said Regulations are of a legislative nature they do not come within the ambit of Article 146.1 of the Constitution and they cannot be made the subject of a 5 recourse (see Eagle Automatic v. Republic—decided in February 9, 1962 by the Former Supreme Constitutional Court (unreported) Papaphilippou (supra) Demetriades (supra) and PASYDY v. Republic

(1978)3 C.L.R. 27. In view of th's conclusion preliminary point (a) succeeds. 10 Preliminary point (b)—Whether the sub judice Order is a Regulatory Act. In Lanitis Farm Ltd., v. Republic

(1982)3 C.L.R. 124 in which the applicants who were producers of table grapes challenge an order, made by the Council of Ministers under section 16 of the Agriculture Insurance 15 Law. 1977, whereby table grapes were prescribed as compulsorily insured, 1 held at pp. 130-132, after referring to a passage from Stassinopoulos, the Law of Administrative Act

(1951)p. 105 which I need not reproduce here, that: "In Cyprus, the applicability of Article 146.1 has 20 as a rule been decided mainly on the basis of the essential nature of the decision, act or omission being challenged. The nature of the organ, authority or person from which a decision or act emanated, or which was allegedly guilty of an omission, has been treated 25 as a relevant, but not always necessarily decisive, consideration in deternrning the essential nature of such decision, act or omission (see <he case of A. Kourris and The Supreme Council of Judicature

(1972)3 C.L.R. p. 390, at p. 400 et seq. and the authorities 30 therein cited). Consequently regulatory acts of a legislative content whether issued by the Council of Ministers or other administrative organ cannot be directly challenged before the Supreme Court as not satisfying the prere- 35 quisites of Article 146 of the Constitution and this is the position regarding the order challenged by these two recourses. Support for this approach can also be derived from what was decided in the cases, inter alia, 2512 3 C.L.R. 5 Contractors of Electr. Engineers v. Republic A. Loizou J. of Police and Hoiulrou. 3 R.S.C.C. 82; Sophoclis Demetriades & Son and Another v. The Republic

(1969)3 C.L.R. p. 557; and Demetrios Philippou & Others v. The Republic

(1970)3 C.L.R., 129; hence both fail and thev shou'd be dismissed accordingly." The Lanitis Farm was followed in the Nicosia Race Club v. Republic

(1984)3 C.L.R. 791. In this latter case The Villages (Administration and Improvement) (Amend'ng No. 3) Regulations of Ayios Dhometios, made 10 under s. 24(h)(i) of the Villages (Administration and Improvement) Law, Cap. 243 obliged the applicants to collect from each player and pay to the respondents a tax of 0.75% on the value of each sweepstake or bet placed. After setting out the above passage from the Lanitis Farm 15 case, I said at pp. 797-798: 20 25 30 35 "'... regulatory acts of a legislative content whether issued by the Council of Ministers or other adnrnistrative organ cannot be directly challenged before the Supreme Court as not satisfying the prerequisites of Article 146 of the Constitution and this is the position regarding the order challenged by these two recourses. Support for this approach can also be derived from what was decided in the cases, inter alia, of Police and Hondrou, 3 R.S.C.C. 82; Sophoclis Demetriades & Son and Another v. The Republic

(1969)3 C.L.R. p. 557: and Demetrios PMippou & Others v. The Republic

(1970)3 C.L.R. 129'. That there is at present only one racecourse and consequently that the sub jud;cc regulations apply to this only does not divest the regulations of their genera! applicability or prevent their application to 'future situations' because if a new Horseracing Authority or new racecourse are set up in future the regulations will equally be applicable to them. By the present recourse the applicant Club directly challenges the regulations themselves—and not their application—which as explained above cannot be, and for this reason this recourse should fail." 2513 A. Loizou J. Contractors of Electr. Engineers v. Republic (19SG) In the Lanitis Farm case the sub judice act affected pro­ ducers of tabic wines only; and in the Nicosia Race Club case it affected the Nicosia race club. And yet the sub ju­ dice Regulations in both cases were held to be Regulatory acts outside the ambit of Article 146.1 of the Constitution. Similarly in this case the sub judice order is a regulatory act crearng legal rules of a general application. Th : s is so because the legal content of the Order is not ''exhausted by one and only application but it retains its force to pro­ voke new applications: on the undefined and future situations which have the general prerequisites set out by the act". 5 10 In view of this conclusion I hold that the sub judice Order, too, bemg a regulatory act of a legislative content. cannot be directly challenged before the Supreme Court as 15 not satisfying the prerequisites of Art-cle 146 of the Con­ stitution (see Lanitis Farm (supra). Nicosia Race Club (su­ pra). Hondrou. 3 R.S.C.C. 82: Demetriades (supra). Popaphilionon (supra). Though by my above conclusions on preliminary :ssues (a) and (b) the recourse is disposed Τ wi'l proceed to deal with the merits of the recourse as well should the case go higher rmrt T am reversed on the above issues so as the Appeal Court mnv have my conclusion on all aspects of the recourse. Merits of the recourse The sub judice Order and Regulations are attacked on the ground of violating applicants' rights under Artxle 25 of the Constitution. Now under Article 25.1 "every person ; has the right to nract se any profession or to carry on any 30 occupation, trade or business", and under Article 25.2 the exercise of tlrs right may be subject to such restrictions as are prescribed by Law and relate exclusively to the qualifications usually required for the exercise in the inte­ rests of the security of the Republic or the Public safety". 35 In Board of Registation of Architects v. Kyrt'akides :

(1966)3 C.L.R. 640 in which the provis ons of the Ar­ chitects and Civil Engineers -Law, 1962, prescribing the qualTications for registration as an architect or civil cn2514 20 25 3 C.L.R. 5 Contractors of Electr. Engineers v. Republic A. Loizou J. gineer, were attacked as infringing Article 25 of the Constitution, it was held that the "conditions or restrictions laid clown in section 7 relate exclusively to qualifications usually required for the exercise of the profession of an arclvtect""; and that they were "necessary in the interests of public safety, for the protection of the rights of others, and in the public interest", and were not unconstitutional. (See pp. 658 -665 of the Report which are very relevant.) In Nicosia Race Club v. Republic

(1984)3 C.L.R. 799 10 at p. 811 I also adopted the following passage from Apostolou v. Republic

(1984)3 C.L.R. 509, where it was said; 15 20 "It is a well settled principle that Article 25 of the Constitution protects the right to exercise a profession or to carry on any occupation, trade or business, from direct and not indirect restrictions or interference. Ample authority can be found inter alia in the following cases, The Police and Liveras, 3 R.S.C.C. pp. 65-67: Psoras v. The Republic

(1968)3 C.L.R. 363, 364; Antoniades and others v. The Republic

(1979)3 C.L.R. 641, 659; loannis Voyias v. The Republic

(1974)3 C.L.R. p. 390, 413; Impalex Agencies Ltd. v; The Republic

(1970)3 C.L.R. 361; and Antoniades case (supra) at p. 655." Having regard to the contents of the sub judice Order and Regulations I hold that they relate exclusively to the qualifications and the conditions required for the exercihe of the profession relat"ng to electrical installations; and they are absolutely necessary in the interests of public safety, for the protect:on of the rights of others, and in the pu30 blic interest. 25 After all one should not ignore the dangers inherent from the use of electricity without any control and the execution of electrical installations by unqualified people. In view of the above conclusion the sub judice Regulu35 tions and Order do not contravene Article 25 of the Constitution. The regulations in question were attacked, also, as being ultra vires to the enabling enactment, namely section 10 of the Electricity Law, Cap. 170. 2515 A. Loizou J. Contractors of Elccir. Engineers v. Republic (1986i In Nicosia Rare Club v. The Republic

(1984)3 C.L.R. 799, 1 dealt with this question at pp. 809-810, where I referred to the relevant Case Law that Τ need not repro­ duce it here. Reading now the enabling enactment and hav:ng regard to the true construction of Section 10(a). (e). (f), (

1. g)and fj). I hold that the sub judice Regulations are within the framework as 'aid down by the cnnbl:ng law and therefore they are not ultra ν'res the enabling enactment. 5 Regarding ground (
2. a)of the grounds of Law. namely deprivation of vested riphts very relevant is what : s stated at pp. 662 -663 'n the Kvrlakides case (supra). 10 "We have to consider also whether a person who had practised as an architect before the Law has ac­ quired a vested right to continue pract'sing such profession, that is, whether such right is protected either by Article 25 or Article 28 of our Constitution; and whether the denial to a person (the applicant) of the right to practise his profession without the licence re­ quired. constitutes π deprivation of such vested right. In dee'ding this point we have derived considerable help from the Judgment of the Supreme Court of the Un'ted States in the case of Dent v. State, of West Virginia, 129 U.S. 114

(1889); 32 Law. cd. 623." Adopting the principles above stated, Τ hold that opplicants have not been deprived of any vested right. 15 20 25 In view of my above conclusion the recourse must fail. In the circumstances however, there will be no order as to costs. Recourse dismissed. No order as to costs. 2516 30