(1987)198^August31 [TRIANTAFYLL1DES Ρ MAlACHTOS DEMETRIADES LORIS STYLIANIDES,PIKIS KOURRIS JJi PAVLOS ANGELIDES Petitioner, υ 1 2 C H R I S T O S PETAS AKEL, 3 A N D R E A S YIANNAi O U . AS RETURNING OFFICER, Respondents (Election Petition No 1/87) Election petition — Constitution, Articles 85 and 145— The Election of Members of the House of Representatives Laws 1979 1986— Whether the Court can take cognizance of an Election Petition based on contention of unconstitutionality of relevant legislation notwithstanding thatsucha ground is not expressly referred to in sections57
(3)and 58 of the aforesaid laws— 5 Question answered in the affirmative The respondents in this Election Petition raised the preliminary objection that the Petition cannotbe proceededwith,because it isbasedon contention of unconstitutionality of the House of Representatives (Filling of Vacancy) Law 95/86, that ison agroundother than thegroundson which an Flection 1 0 Petition canbebasedinaccordancewith sections57
(3)and58ofthe Decnon of Members of the House of Representatives Laws 1979-1986 Held, dismissing the preliminary objection (A) Per Tnantafyllides, Ρ
(1)The words «ασκούμενης κατά τον εκλογικον νομον» («made under the provisions of the Electoral Law») in Article 145 cannot be construed as 1 5 meaning that the grounds of a petition can be limited by such law so as to exclude agroundof unconstitutionality of the relevant legislation
(2)Moreover, the aforesaid,sections 57
(3)and 58 do not enumerate exhaustivelythe grounds onwhich an election petitionmay bebasedsoasto exclude a ground of unconstitutionality of the relevant legislation Such ground Is not expressly referred to by either section, but it Is envisaged by section 57
(1),which speaks of «παν θέμα» («any matter») 450 20 1 C.L.R. o 1U Angelldes v. Petas& Others (B) Per Pikis J
(1)Articles 85 and 145 of the Constitution confer junsdiction on the Supreme Constitutional Court as an Electoral Court to adjudicate upon «ττάοα ενστασις» (every objection) to the validity of an election What the Constitution empowers the legislature to regulate by law is the"adjectival side of the proceedings, namely the form and content of the petition and mattersincidental thereto
(2)The Electoral Law mustbe readsubjecttothepertinentprovisions ofthe Constitution The Constitution confers an unqualified nght to question an election upon any ground and bestows correspondingly junsdiction on an ElectoralCourt toheedandtakecognizance ofevery objectiontoan e'ectton Preliminary objections dismissed Cases referred ο PresidentoftheRepublic ν House ofRepresentatives(\9$5) 3 CL R 872 Preliminary objection. 15 20 Preliminary objection that the present petition, which is based on the contention that the provisions of the House of Representatives (Filling of Vacancy) Law, 1986 (Law No. 95/ 86) is unconstitutional as being contrary to Article 66 2 of the Constitution, cannot be proceeded with. Applicant appeared inperson. Chr Demetriades with A Papaioannou forrespondents 1and 2. N. Charalambous, Senior Counsel of the Republic, for respondents. 25 E. Efstathiou with A. Andreou and M. Papapetrou, for the House of Representatives, as interestedparty A. Andreou, forDHSY, asinterested party. No appearance for DHKO. £ Efstathiou forEDEK, as interested party. 30 Cur. adv vult. The following judgmentswere read: TRIANTAFYLLIDES P.: At this stage we are dealing with preliminary objections which have been raised by counsel for the respondents and counsel for the interested parties. 451 Triantafyllldes P. Angelldes v. Petas & Others
(1987)As regards those of τ-3 objections which relate to matters of procedural formalities we are of the view, in the light of the Decision of ourSupreme Courtinthecase of ThePresidentof the Republic v. The House of Representatives,
(1985)3 C.L.R. 872, that th^y have been rightly abandoned and, therefore, we are no longer concerned with them. 5 As regards the preliminary objection that the present petition cannot be proceeded with because it is, in effect, based on the contention that the provisions of the House of Representatives (Filling of Vacancy) Law, 1986 (Law 95/86) is unconstitutional,as 10 being contrary to Article 66.2 of the Constitution, and because a ground of unconstitutionality of the relevant legislative provisions isnota ground on which anelectoral petition canbe based under sections 57
(3)and 58 of the Election of Members of theHouse of Representatives Laws, 1979-1986, we are of the opinion that for 15 the reasons set out hereinafter itcannotbe sustained: Ingivingsuch reasons we find ituseful torefer toArticles 85 and 145 of the Constitution which read as follows: «ΑΡΘΡΟΝ 85 «Παν θέμα σχετικόν π ρ ο ς τα προσόντα 20 εκλογιμότητος των υ π ο ψ η φ ί ω ν και π ά σ α ένστασις κατά των εκλογών εκδικάζονται οριστικώς και αμετακλήτως υ π ό του Ανωτάτου Συνταγματικού Δικαστηρίου.» ARTICLE85 («Any question with regard to the qualifications of candidates for election and election petitions shall be finally adjudicated by theSupreme Constitutional Court.») 25 ΑΡΘΡΟΝ 145 «To Ανώτατον Συνταγματικόν Δικαοτήριον κέκτηται 30 αποκλειστικήν δικαιοδοσίαν να αποφασίζη οριστικώς και αμετακλήτως επί π ά σ η ς εκλογικής ενστάσεως, ασκούμενης κατά τον εκλογικόν νόμον,αναφερομένης δε εις την εκλογήν του Προέδρου ή τ ο υ Αντιπροέδρου της Δημοκρατίας ή των βουλευτών ή των μελών των 35 Κοινοτικών Συνελεύσεων.» ARTICLE 145 («The Supreme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on any election petition, 452 1 C.L.R. Angelides v. Petas & Others Triantafyllides P. made under the provisions of the Electoral Law, with regard to the elections of the President or the Vice-President of the Republic orof members oftheHouseof Representatives orof any Communal Chamber.») 5 We mightpointatoncethatthewords «ασκούμενης κατά τον εκλογικόν νόμον» («made under the provisions of the Electoral Law»)inArticle 145, above, cannotbe construed as meaningthat the grounds on which a petition can be based may be limited by the Electoral Law so as toexclude aground ofunconstitutionality 10 of the relevant legislation because such a construction would be incompatible with both the letter and spirit of Article 145 as a whole and, also, it appears to be excluded by the clear and unambiguous wording of Article 85, above and by thenatureand extent of the jurisdiction of the Supreme Constitutional Court, which is exercised now by ourSupreme Court. 15 Moreover, we are, in any event, of the opinion that the aforementioned sections 57
(3)and58 have tobe interpretedand applied as notenumeratingexhaustively thegrounds onwhichan electoral petition can be based so as to exclude the ground of unconstitutionalityof therelevant legislation, whichisnot referred 20 to expressly in either section 57
(3)or 58, but which is clearly envisaged by section 57
(1)of the Electoral Laws which provides that «παν θέμα» («any matter»)which may arise inrelationtothe right ofanypersontobecomeortoremainaMemberoftheHouse of Representatives isdeterminedby the Electoral Court,thatis, in 25 a case such as thepresentone, by ourSupremeCourt. We, therefore,holdthatthispetitioncannotbe dismissed onthe basis of preliminary objections raised by counsel for the respondents and for the interested parties and has to be determined on itsmerits. 30 PIKIS J.: While I agree that procedural objections to the justiciability of the petition cannot be sustained and ought to be dismissed, aseparatejudgment willbe givenasthereasons for my decision do not coincide with those of my colleagues. The basic objection to the validity of the proceedings is that the petition is 35 founded on grounds other thanthose 'imitatively specified inthe Election of Members of the House of Representatives Law (72/ 79),notably, thegrounds enumeratedins. 58 of thelaw.Inherent inthe submission of counsel isthesuggestion thatthe jurisdiction of the ElectoralCourttoreviewthereturnorelection of members 40 oftheHouseofRepresentatives isdefined andsequentially limited 453 PiklsJ. Angelides v. Petas & Others
(1987)by the law By necessary implication we are invited tohold thatit is competent for the legislature to define the junsdiction of an ElectoralCourtinamannerdirectlycontraveningtheprovisions of Articles 85 and 145 of the Constitution For both articles in unqualified terms confer junsdiction on the Supreme ConstitutionalCourtas anElectoralCourtandtheSupremeCourt asthesuccessor of thatbody totake cognizance of and adjudicate upon ' π ά σ α ένστασις' (every objection) to the validity of an election 5 What the Constitution empowers the legislature to regulate by 10 law andtheSupreme Courtby rules of Court,istheadjectival side of the proceedings, namely, the form and content of thepetition and matters incidental thereto Objections tothe regularity of the petition from the angle of the relevant Rules of Court have been abandoned, wisely I believe, in light of the decision of the 15 Supreme Court in The President of the Republic ν House of Representatives* and the caselaw reviewed therein Like Art 146 1 of the Constitution,Art 145 2 too defines the junsdiction of the Supreme Court in the area of its purview, namely,reviewof thevalidity ofelections Infact asenes of articles 20 inPartIXof the Constitutionaimtoestablish thejunsdiction of the Supreme Courtin specific areas of competence, notably, Articles 137, 138, 139, 140, 141, 142, 143 These articles of the Constitution as well as Art 145, are preceded and introduced by Art 136 that lays down «the Supreme Constitutional Courtshall 25 have exclusive junsdiction to adjudicate finally on all matters as provided in the ensuing articles» One of these matters is, in accordancewith theexpressed provisions of Art 145,objection to the validity of an election The Constitution confers an unqualified nght to question an 30 election upon any ground and bestows correspondingly junsdiction on the ElectoralCourttoheed and take cognizance of every objection to an election,subject alwaystothe power of the Courttodismiss summanly afnvolous proceeding, as provided in Art. 134 2 The breadth of the jurisdiction of the Courttoreview 35 the validity of an election is,tomy mind,intendedtounderpinthe democratic process by safeguarding unimpeded access to the •
(1985)3CLR 872 454 1 C.L.R. Angelides v.Petas&Others PiklsJ. Courtandcompetence totakecognizance ofandadjudicate upon every complaint of alleged breach of the Constitution, the law or any irregulanty The electoral law cannot but be read subject to the pertinent 5 provisionsof theConstitution WherethejunsdictionofaCourtof law iscomprehensively defined by the Constitution itis profitless to go further and inquire whether any given law curtails judicial power ForthisreasonIconsideritunnecessarytodebate whether the electoral law read in its entirety purports to limit the 10 competence vested in the Court bythe Constitution Junsdiction isassumed invirtueoftheConstitutionandaninquirywillbe held in order to examine the validity of the objections raised to the election, elicited intheform prescnbed bytheRules HenceIjoin in the order for dismissal of the preliminary objection to the 15 sustenance of the proceedings Preliminaryobjection dismissed 455