1 C.L.H. 1987January27 [TRIANTAFYLLIDES,Ρ .MALACHTOS,LORIS,STfLIANIDES, PIKIS,KOURRIS,JJ] PAVLOS PAVLOU, Petitioner, ' v. 1.THECHIEFRETURNING OFFICER 2.THEMAYOROFN1COSIA, Respondents. (Election Petiti
Article 2
and without unreasonable restrictions 5 (
- a)To take part in the conduct of public affairs directly or through freely chosen representatives, (
- b)To vote and to be elected at genuine periodic elections 10 which shall be byuniversalandequalsuffrage andshallbeheldby secret ballot, guaranteeing the free expression of the will of the electors; (
- c)To have access, on general terms of equality, to public service in hiscountry » 15 Article2 of the Covenant mentioned above readsas follows «Article 2 1 Eacn State Party to the present Covenant undertakes to respect and to ensure to all individuals within its temtory and subject to its junsdiction the nghts recognised in the present 20 Covenant, without distinction of any kind, such as race, colour, sex,language,religion,politicalorotheropinion,nationalorsocial ongin, property, birth or other status 2 Where notalreadyprovidedforbyexistinglegislativeorother measures,each State Partytothepresent Covenant undertakesto 25 take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to giveeffect tothe nghts recognised inthe present Covenant
(3)Each State Party tothepresent Covenantundertakes; 30 (a) To ensure that any person whose nghts or freedoms as herein recognized are violated shall have an effective remedy notwithstanding thattheviolationhasbeen committed bypersons acting inan official capacity, (b)Toensurethatanypersonclaimingsucharemedyshallhave 35 hisrightthereto determined by competentjudicial, administrative 286 1 C.L.R. Pavtou v. Chief Return Officer Malachtos J. or legislative authorities, or by any other competent authority provided for bythe legal system of the State, and todevelop the possibilitiesofjudicial remedy; 5 (c)To ensure that the competent authorities shallenforce such remedieswhengranted.» Accordingtothesubmission ofcounsel forthepetitioners,since Article25oftheInternationalCovenantspeaksabouteverycitizen shall have the right and the opportunity without any
Article 2
and without unreasonable 10 restrictions take part inthe conduct of publicaffairs, he could see noreasonforwhichthepetitioners,whowerelawfullyelected,tobe forced to abandon their employment if they wish to take up the office of Municipal Councillor. To my mind, Article 169.3 of the Constitution in view of its 15 proviso, has limited application. Itapplies only on condition that suchtreaties,conventionsandagreementsareappliedalsobythe other party thereto. This other party thereto is referred to as «antisymvallomenos» in the Greek text of our Constitution. It follows from the above that para. 3 of Article 169.of the 20 Constitution is applicable only for treaties, conventions and agreements based on reciprocity which when ratified and published in the official Gazette of the Republic, shall have superior force over the Municipal Law, as for example, the European Convention on the International Validity of Criminal 25 Judgments, the European Convention on Extradition, the agreement on the abolition of visas and the like. In the case in hand, thereisnocontractingpartyon theotherside. A country ratifying the International Covenant on Civil and Political Rights, undertakes to protect its people by law against 3 0 cruel, inhuman or degrading treatment. Itrecognises the rightof every human beingtolife,liberty,securityand privacyof person. The covenant prohibitsslavery,guaranteesthe right to a fair trial and protects persons against arbitrary arrest or detention. It recognisesfreedom ofthought,conscienceand religion, freedom 35 of opinion and expression, the right of peaceful assembly and emigrationandfreedom ofassociation. ' Itisclearfrom the above that Article169.3ofthe Constitution, does not apply in the present case. By the ratification of the Covenant, the Republic undertook the obligation which is 40 describedinArticle2thereofandinparticularparagraph2. 287 Malachtos J. Pavlou v. Chief Return Officer
(1987)Inthecase of TheRepublic v. Demetriades
(1977)3C.L.R.213, at page 245, I made reference to the said Covenant just to emphasise this obligation undertaken by its ratification by the Republic. Finally,irrespectiveofthefactthatinmyviewthesaidCovenant 5 isnot self executing, even ifwe accept, for the sake of argument, thatArticle25thereof, hassuperiorforce asagainstany Municipal Law of the Republic, section 16.2(b) of Law 111 of 1985, as amended byLaw25of 1986,doesnot contravene any provisions thereof as the restrictions imposed by it are in my opinion not 10 unreasonable. Forthereasonsstatedabove,Iwoulddismissbothpetitionswith no Order as to costs. LOR1S J.: I agree with the judgment just delivered by the President of the Court and I do not wish toadd anything. 15 STYLIANIDES J.: I agree that these election petitions fail. Learned counsel for the petitioners vigorously submitted that Section I6
(2)(b) of the Municipalities Law, 1985 (No. I l l of 1985),asamended bySection6oftheMunicipalities(Amendment) (No. 3) Law 1986, (No. 25 of 1986) violates the principle of 20 equality safeguarded by Article 28 of the Constitution and is repugnant to and inconsistent with Article25 of the Constitution. Furthermore itviolatesArticle25.2 oftheInternational Covenants on Civil and Political Rights adopted by the General Assembly Resolution 2200 A (XXI) of 16th December, 1966, which was 25 ratified by the Republic of CyprusbyLawNo. 14/69. Article 28 of the Constitution safeguards the right of equality and embodies the principle of non-discrimination. The principle of equality isafundamental principle ina democratic society and applies to the preformation of the political will of the people, the 30 constitution andfunction oftheorgansofthepoliticalpower. The principleofequalitygovernsthefunction ofademocraticregimeat the level of election, constitution and function of the organs expressing the willof the people. Article28 doesnotprohibitdistinctionsintreatment,whichare 35 foundedonanobjectiveassessmentofessentiallydifferentfactual circumstancesandwhich,beingbasedonthepublicinterest,strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms of the 288 1 C.L.R. Pavlou v. Chief Return Officer Stylianides J. individual.Article28isviolatedonlywhen thedifferentiation isnot based on objective and reasonable justification. 5 TheCourtinconsideringadistinctioncannotdisregardthelegal and factual features which characterize the life of the society.The taskof theCourt isnot toexamine the propriety orwisdom ofthe legislature but only todecide ifthe differentiation isobjective and reasonably open. The pnnciple of equality in the election isnot at all interfered with. The election, according to the Municipalities Law, and the 10 basis of the presentation of the electorate has as its basis for the representationoftheelectoratethepoliticalpartieswhichrepresent the electoral body; the parties are proportionally represented on the Municipal Councils and those of the candidates of the parties who are favoured bythe electorate aresuccessful. Therighttobe 15 elected is neither prohibited nor restricted by the Municipalities Law. Section 16
(2)(b) only prohibits their taking up the office of the municipal councillor ifthey continue tohold the post of paidcivil servant and employee of a public corporation, respectively. In 20 effect it provides that the exercise of the duties of municipal councillor is inconsistent with the post of a paid civil servant or employee of a public corporation. Taking into consideration the dutiesand responsibilities ofcivil servantsand employees of public corporations and the natureof 25 the office of the municipal councillor, I am of the view the provisions of Section 16
(2)(b) of the Municipalities Law do not violate the principle.of equality as the difference intreatment isa distinction that has objective and reasonable justification. Article 25 of the Constitution protects from direct and not 30 indirect interference with the rights safeguarded thereunder, i.e. therighttopractise anyprofession ortocarryonany occupation, trade or business. This right is not directly infringed by the challenged statutory provision. The International Covenant on Civil and Political Rights was 35 adoptedandopen forsignature,ratification andaccessionon16th December, 1966. It was signed by virtue of a decision of the Council of Ministers dated 1§.2.67 and was ratified by the International Covenants (Economic, Social and Cultural Rights and fivil and Political Rights) (Ratification) Law, 1969 (No. 14of 289 Styllanldes J. Pavlou v.Chief Return Officer
(1987)1969), published intheOfficial Gazetteon28.2.69.Itentered into force threemonthsafter thedateofthedepositwiththeSecretaryGeneral of the United Nations of the 35th Instrument of Ratification -(SeeArticle49)-3rdMarch, 1976.Theratificationby LawNo. 14/69 was made underArticle 169, paragraph 3,of the 5 Constitution, theeffect and application ofwhich,and the position of conventions ratified in conformity therewith, were recently considered by this Court in Civil Appeal No. 6616 - (Toulla Malachtou v. Christodoulos CostaArmeftis &Another).* The covenant has superior force over any municipal law, both \Q anterior and posterior, as from the date that it comes into force under international law,provided the requirementsofArticle 169 are satisfied. Article 169.3reads:«Treaties, conventions and agreements concluded in J5 accordance with the foregoing provisions of thisArticle shall have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition thatsuchtreaties,conventionsandagreementsareappliedby the other party thereto*. 20 The conditions of the coming intoforce under Article 169.3of thisCovenant have notbeen argued before us. The condition of reciprocity, having regard to the nature and provisions of the Covenant, cannot be invoked. This is a multilateral convention. Its nature, objective and function in the 25 international relations and the internal legal order exclude the conditionofreciprocity. Itsobject isnottocreateanysubjective or reciprocal rightsfor theStatespartiesthemselves but its objective and intentisthepromotion ofvaluesandtheprotection ofhuman rights. 30 InMalachtou caseabove itwassaid:«ftwouldbeincomprehensible foraStatenottosecure tht rightsandfreedoms defined inSection 1 oftheConventionof Human Rights on the ground that another party to the Convention violatesthe Convention even against a national 35 of thefirstState». Furthermore the Covenant provides for a mechanism of control,theestablishmentofaHuman RightsCommittee.Thefac 'Reportedin
(1987)1 C.LR. 207. 290 1 C.L.R. Pavlou v. Chief Return Officer Stylianides J. that Cyprus has not as yet recognized the compe^nce of that Committee for interstateapplications underArticle41and hasnot ratified the optional protocol for individual petitions, does not influence theexclusion oftheconditionofreciprocity;similarlythe 5 non-acceptance of Article 25 of the European Convention on Human Rights for individual petition has not made the latter convention non-applicable inthedomesticorderoftheRepublic. Is the Covenant self-executing? Its provisions are not pious declarations. They maybe applied bythe organsof the State and 10 can be enforced by the Courts. They create rights for the individuals and they govern and affect directly relations of the internal life between the individuals, and the individuals and the State, or the public authorities. Its provisions create rights and interestswhich can be justiciable. Each State party undertakes to 15 respect and to ensure to all individuals within its territory and subject to itsjurisdiction the rights recognized in the Covenant. Such rights are set out therein as in the regional European Convention - the European Convention on Human Rights which, having been ratified by Law No. 39/62, isapplied by the 20 Courts of thiscountry with superior force for over two decades. Asregards the effect of the ratification of the said Covenant in relation tothe application of the Covenant, useful reference may be made to the case of loannides and Others v. The Republic,
(1979)3C.L.R. 295,304, 305.306,334,335 and 338. 25 30 35 In Attorney-General v. Georghiou,
(1984)2 C.L.R. 251, the President of thisCourt said atp.287:«Itmust be borne in mind that even though itwas initially held that Articles30 and 155.1 of our Constitution, aswellas Article 6 of the European Convention on Human Rights, do not create a right to the availability of a remedy by way of appeal, the existence of such remedy in criminal cases has been rendered mandatory ever since the Republic of Cyprus has ratified, by means of the International Covenants (Economic, Social and Cultural Rightsand Civiland Political Rights) (Ratification) Law, 1969 (Law 14/69), the United Nations International Covenant on Civiland PoliticalRights, Article 14
(5)of which providesthat 'Everyone convicted ofa crimeshallhavetherighttohisconvictionandsentence being reviewed bya highertribunal according tolaw'». 291· Styllanldes J. Pavlou v. Chief Return Officer
(1987)(SeealsothejudgmentofLoris,J., atp.294,andmyjudgment atpp.302-303). In view of the aforesaid the Covenant is self-executing and applicableinthedomesticlegalorderoftheRepublicofCyprus. Article25(b)providesthat«Every citizen shall have the right and the opportunity, without any
Article 2and withoutunreasonablerestrictions: (a) (b)
Tovoteand tobeelectedatgenuineperiodicelections 10 which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the expression of the willoftheelectors». Theright"tovote"and "tobee!ected"isnotinfringed bythe statutory provision inquestion. Itisonlytherighttotake upthe 15 dutiesofthemunicipalcouncillorthatisaffected butifsuchright is covered by the right «to be elected», then the restriction envisagedinSection I6
(2)(b)isnotunreasonable. Fortheaforesaid reasonsthesepetitionsaredismissedbutinall thecircumstancesthereshallbenoorderastocosts. 20 PIKISJ.:Theapplicantsseekadeclarationthatsection 16
(2)(b) of the Municipalities Law (Law 111/85) is unconstitutional, thereby removing the impediment posed by the law to the assumption of the duties of Municipal Councillors by public servants.PavlosPavlou,thefirstapplicant,isanemployeeofthe 25 CyprusBroadcastingCorporationandAndreasHadjiandreou, the second, is a Government Officer in the Department of Civil Aviation.Inthemunicipalelectionsof1985theywerereturnedas councillors to the municipalities of Nicosia and Aglandjia respectively. They sought election to the office under the party 30 ticketoftheSocialistPartyEDEK. Section 16
(2)(b), the constitutionality of which is impugned, while it permits the election of civil servants and employeesof publiccorporationstotheofficeofmunicipalcouncillor,itrenders the holding of the two offices incompatible and makes the 35 assumption of the office ofamunicipal councillordependent on priorrelinquishmentofthepostinthepublicservice. 292 5 1 C.L.R. Pavlou v. Chief Return Officer Pifcis J. The constitutionality of section 16
(2)(b) ischallenged solely by reference toArt.28 of the Constitution thatsafeguards, interalia, equality before the law.Inthe course ofargument, Mr. Efstathiou advanced a second reason that makes, in his submission, the 5 provisionsofsection 16
(2)(b)inoperative.Therelevant provisions of section 16
(2)(b), he submitted, also conflict with Art. 25 of the United Nations Covenant on Civil and Political Rights, of 16th December, 1966, ratified, together with the Covenant on - - Economic, Social and Political Rights of the same date, by Law 14/
- Consequently, they became inoperative in view of the provisions of para. 3 ofArt. 169that confer superior force on the provisions of international agreements ratified by law and supersede municipal laws. The fact that the Municipalities Law was enacted on a date subsequent to the ratification of the
- aforementioned covenantsandtheimplicationsarising therefrom, viewed inconjunction with the provisionsofArt. 169.3, were not touched upon. The implications deriving from the ratification of the aforementioned covenants on internal law were not 20 comprehensively discussed to make feasible the expression of a concluded opinionastothedegreeandextentoftheirapplication; nor was the content of the specific provisions of the covenants explored in'order to decide whether they are self-executing. The onlyarticleofthecovenant towhichreference wasmadewasArt. 25 25 that prohibits the imposition of "excessive" limitations to the rightto be elected to an office involving management of public affairs. Suffice ittoobserve that the relevant restrictions imposed by s.l6
(2)(b) of Law 111/85 do not amount to an excessive limitation of therighttobeelectedtopublicoffice. The onlyissue 30 properly arising for decision, in accordance with the election petitions,iswhethertheprovisionsofs.16
(2)(b)conflictwithorare contrary tothe fundamental right of equality safeguarded by Art. 28ofthe Constitution. Before attempting to interpret Art. 28 in conjunction with 35 s.16
(2)(b)of Law 111/85,itispertinent torefer tothestructureof theConstitution of Cyprusthatprovides the context inwhichArt. 28, as well as any other article of the Constitution must be interpreted. The Constitution of Cyprus provides for strict separation between political and administrative authority, a 40 divisionthatpermeateseveryaspectofgovernmentateverylevel. Thedistinctionbetween thepoliticaland administrativebranchof 293 Pilds J. Pavlou v. Chief Return Officer
(1987)governmentwasnoticedbytheFullBenchinFrangoulides(No.2) v. Republic
(1966)3 C.L.R. 676, and characterized as an importantaspectofthe Constitution. Mr.Efstathiou submitted the distinction between political and administrativeauthorityisinthiscaseirrelevantbecausetheoffice 5 of municipal councillor does not entail the exercise of political authority. Counsel for the Attorney-General, as well as Mr. MichaelidesandMr.Papapetrou,counselforthe mayorsofNicosia andAglandjiarespectively,disagreed,withthissubmission. Inmyjudgment,politicaliseveryoffice thatentailstheexercise IQ of State power at a primary level. The competences of municipalities,organsoflocalself-government, entailtheexercise ofexecutivepower (seePartVII)andlegislativepowersubjectto approval by the Council ofMinisters (section 87, Law 111/85). Thepoliticalcharacteroftheofficeismademoreprominentstillby 15 the provisions of the law governing the election of councillors adopting the proportional electoral system primarily based on partyrepresentation (sees.30
(1)ofLaw111/85). The assimilation of civil servants and employees of public corporationsmadeins.16
(2)(b)isconsonantwiththeprovisionsof 20 Art.122 of the Constitution that providesthat both categoriesof public employees are members of the public service. Consequently, the distinction made ins.l6
(2)(b)between public servants,ontheonehand,andothercategoriesofemployeeson theother, forpurposesofexerciseofpoliticalpower,isinaccord 25 withthespiritandprincipleunderlyingtheCyprusconstitution. Whatmustbedecidediswhethertheprovisionsofs.16
(2)(b)of Law111/85conflictwithorareinanysenseinconsistentwiththe provisionsofArt.28oftheConstitution.Art.28wasthesubjectof interpretation innumerousdecisionsoftheSupremeCourt.The 30 ambitofArt.28hasbeensowelldefined astorendersuperfluous identification ofitbyreference toparticularjudicialdecisions. Art.28institutionalizestheAristotelianconceptofequalitythat •correlatesequalitytosubstantivehomogenityamongobjectsand situationsincontradistinction totheirnumerical equation. Inthe 35 absenceofsubstantivehomogenityArt.28placesnoconstrainton legislativepursuitsandregulatoryaction.Legislativediscretionis verywide,co-extensivewiththebreadthofpoliticalresponsibilityof the legislature for the content of the law. Room for judicial intervention'-runder Art. 28 exists only where legislative 40 294 1 C.L.R. Pavlou v. Chief Return Officer Plkls Λ, classification transgresses the outer limits of differences in the position orsituation of persons dissimilarly circumstanced. The political objectives sought tobe achieved by legislation or the wisdom of the law as such are not subject to controlby the 5 Courts. The task of the judicial power of the State is the identification and definition of principles of law and their clarification in face of disagreement. In the area here under consideration, the Constitution leaves the regulation of matters referrable totheassumption and exercise of thepolitical office of 10 municipal councillor to the legislative power of the State. The distinction made in s.l6
(2)(b) not only it does not offend the principle of equality entrenchedin Art. 28, but on thecontrary is in conformity with the spirit of the Constitutionand the division adoptedthereinbetween thepoliticalside of governmentand tile 15 Administration, a secondary branch of the executive tier of executive power. Iconcludethattherelevantprovisions oftheMunicipalities Law -s.l6
(2){b)-areconstitutionalandinconsequencetheapplicants have rightly been precluded from assuming duties of municipal 20 councillor. Theapplicationsare dismissed. 25 KOURRIS J.: I also agree thatihe petitionsmustbe dismissed. These two petitions were heard together as they presented commonquestionsoffactsandlaw. Thesoleissuebefore usistheconstitutionalityofs.16(2Ha){b> as amended of the Municipal Corporations Law 111/85 which provides,_inter alia»thata civilservant oran employee of a public corporationcannotbe electedasa mayororhavingbeen elected amemberofamunicipalcommitteehecannotexercise hisduties. 30 Applicant inBection PetitionNo. 3/86 is an employee of the Cyprus Broadcasting Corporation,which is a public corporation and applicant in Election PetitionNo. 4/86 is a civilservant and they were elected as members of the municipal committees of Nicosia and Agiandjia respectively, atthe elections held on 25th 3 5 May, 1986. Their counsel contendedthats. 16
(2)(b){as amended)of Law No. 111/85 contravenes Article 28.1 of the Constitution which makes provision about "equality" andreadsthat"all persons are equal before the law, the administration and justice and are 40 entitledtoequalprotectionandtreatment thereby. 295 Kourris Λ. Pavlou v.Chief Return Officer
(1987)The principle laid down in the Mikrommatis case (supra) was followed by the Court in several cases since and the question whichposes forconsiderationiswhethers.16
(2)(a)(b)(asamended) of Law No. 111/85 which excluded, inter alia, civil servants or employees of public corporationsfrom being elected asmayorsor 5 members of municipal committeesarearbitrary differentiations or reasonable distinctions which have-to be made in view of the intrinsicnature of things. Ihave also reachedtheconclusionthats.16
(2)(a)(b)asamended of the Law, does not contravene Article 28.1 of the Constitution I Q for the reasons given by my learned brotherJudges. Suffice itto say that members of municipal committees take sides in politics andthey exercise political powers andtheirdutiesascivil servants may come intoconflict with theirduties as members of municipal committees which is contrary to the principle of proper 15 administration. During the hearing of these petitions counsel for the applicants raised another point which was not included in his Application which isthis:Thats. 16
(2)(a)(b)of the law iscontrarytos.25 of Law 14 of 1969 and to the Convention on Discrimination 20' (Employmentand Profession) No. 111 of 1958 (Ratification) Law 1968, Law 3 of 1968. We hadnotthebenefit ofargumentofother counsel as they were unaware thatthispointwould be raised. As at present advised and without stating my considered opinionas Ihad nothadtheadvantage of afullargumentonthese 25 points these two laws do nothelp the applicants in any way. For these reasons the petitions fail with no orderfor costs. TRIANTAFYLLIDES P.: In the result these petitions are dismissed unanimously but with no order as totheircosts. 30 Petitionsdismissed withnoorderastocosts. 296