clr/1987/1987_3_1189.pdf

(3)— Whether aforesaidsection, vesting thePresidentof the Republic withpower to terminate theappointment of the Chairman and Members of the Public Service Commission, set up by the said law, is unconstitutional— Questionansweredin the negative Constitutional Law— Lawof necessity — The necessaryprerequisites forthe applicationofthe doctrine— Whatmeasuresarejustified thereunder Constitutional Law — Questions of constitutional nature — The pnnctples governingthepower of the Courtstoexamine suchquestions 10 15 20 25 The question inthis appeal iswhether section 4

(3)of Law 33/67, which provides thatthePresidentoftheRepublic isvested with power toterminate in the public interest the appointment of theChairman or of anyother memberofthePublic Service Commission,is unconstitutional Inthisrespect thetrialJudge held*thatsection 4

(3)isunconstitutional,not only because itis inconsistent with Art 124 5 ofthe Constitution,but also because itoffends theconstitutionalprincipleof separation between political and administrative authonty The trial Judge held further that because of section 4

(3)the Public Service Commission was unconstitutionally constitutedand,asaresult, thesubjudice decision hastobe annulled Held,allowingthe appeal, Koums, J dissenting (A) Per Triantafylhdes, P, Malachtos,J concumng

(1)The case law established thatthePublicService CommissionsetupbyLaw33/67isnotthe PublicService Commission provided for by Art 124oftheConstitution, but a new Commission Consequently,'Art 1245of the Constitution is not directly applicable totheCommissionofLaw 33/67 •SeeKyrlacovv TheRepubbc{1987)3 C LR 1130 1189 Republic v. Kyriacou

(2)Thesettingupof the aforesaid newCommissionwasjustified bythe Law of necessity The new Commission has toexistandfunction ina manneras closely analogous as possible with the Commission of Art 124, because otherwise thesetting upof the newCommission cannotbejustified underthe law of necessity It follows that the question is whether section 4

(3)is compatible with theindependenceof the new Commission 5

(3)Ithas notbeen established thatsection 4

(3)of Law 33/67 was intended to be, or has been or can be used for the purpose of interfenng with such independence Moreover,theexistenceofjudicial controlover the exercise of the power undersection4

(3)(See Louca ν Presidentof the Republic

(1984)1 0 3 C LR 241) eliminates any nsk of interference with thenew Commission's independence

(4)Inany event,thesub judice decision cannotbe annulled,because ithas not been shown that the alleged invalidity of section 4

(3)was in any way related to the manner in which such decision wa reached 15 (B)PerA Loizou, J, Malachtos, J concurring

(1)in The Republicν Louca and Others

(1984)3 C LR 241, where, however, the issuewas whether a revisional junsdicnon appeal orarecourse underArt 146 canbe withdrawn withoutpnorleave of theCourt,therewere madecertainobservations tothe effect that the whole matter of section 4

(3)of Law 33/67 should be 2 0 reconsidered by the appropnate organs in the light of Art 124 5 of the Constitution

(2)On28 11 86 a Bill was published proposing an amendmentof section 4

(3)to theeffect tha theChairmanand Members of the Commissioncannot be removed from office, exceptonthelike groundsandinthelikemanneras 2 5 the Judges of theSupreme Court TheBillhasnotbeen enactedsofarby the House of Representatives, butthedelay was duetothefact thatitwas left to be introducedas part of abiggerrevision of thePublicService Law

(3)Moreover the tenor of subsection 3 is nothing more than the power claimed to be possessed by the Executive branch of Governmentunderthe 3 0 generalprinciplesofAdministrative Law,namelythe administrative measure

(4)Section4

(3)of theLaw was presumably a provision thatwould enable the Presidentof theRepublictoterminate inthepublicinterestthe servicesof the members of the Public Service Commission in case for example there were Constitutionalandotherradicalchanges inCyprusthatnecessitated the bringing toan end theoverall structureof thePublicService Commission, as established by thesaid Law as atemporary measure 35

(5)To mymindthe developmentswhichhavetakenplacesinceLouca case (supra)have ineffect andforallintentsandpurposesrenderedinoperative the said sub-section and in no way could be invoked as constituting an 4 0 interference with the independence of the members of the Public Service Commission 1190 Republicv. Kyriacou

(1987)243 cited with approval by Josephides, J. in The Board forRegistration of Architects and CivilEngineersv. Kyhakides

(1966)3 C.L.R.640 was cited withapproval).

(2)The taskofthetrialJudge inthiscasewasconfined totheissuewhether the sub judice appointments were reasonably open to the Public Service Commission. 5

(3)Determination ofthe constitutionality ofsection4

(3)of Law33/67 was not «absolutely necessary toadecision of thiscase», inasmuch ass. 4

(3)of Law33/67wasneitherappliednora questionofitsapplication arose. (E)PerStylianides,J,:

(1)Thedoctrine of necessityismainlybased on the maxim«saluspopuliestsuprema lex».Theprerequisitesfortheapplicationof the doctrine were setout inAttorney-General v.Ibrahim and Others,supra, byJosephides,J. atp.265.Theprinciple that can be deduced fromIbrahim case isthat the Courtmaytemporarily treatasvalidand effective lawswhich are constitutionally flawed in order to preserve the rule of law. When it is impossible to comply with the Constitution, the Court may allow the Governmentatemporaryreprievefromsuchcomplianceinordertopreserve society and maintain,asnearlyaspossible,normal conditions.

(2)The establishment of the present Public Service Commission by Law 33/67 wasjustified bythe Lawof necessity.

(3)In the Republic v. Louca and Others,supra observations obiter were made by a number ofJudges, either expressly declaring that section 4

(3)of Law 33/67 is clearly unconstitutional and not justified by the «law of necessity», or that a serious question of its constitutionality arose and that senousdoubt wascastonitsconstitutionalityandthewholemattershouldbe 2 5 considered by the appropriate organs of the Republic in the light of the provisions of the Constitution. Thereafter aBillNo.28/86waslaidbefore theHouseofRepresentativesby the Executive, whereby section 4 of Law33/67 was sought to be repealed and substituted by a new section, providing that the members of the 3 0 Commission can onlybe removed from office on thelikegroundsandinthe likemanner asJudgesof theSupreme Court. This Bill was not enacted by the House of Representatives, as in the meantime a comprehensive Bill,containing many provisions relating to the PublicService -Bill16/87,wasintroduced.

(4)Havingregardtotheabove,theprovisionsofsection4

(3)havebecome inoperative and no President of the Republic may exercise power under it. Its existence in the statute book, as aforesaid, cannot be validly said that it interferes in any way with the independence of the members of the Public Service Commission. 1192 35 3 C.L.R. Republicv. Kyriocou

(5)Inanyeventithasnotbeenshown thattheprovisionsofsection4

(3)had any connectionorrelationwhatsoever with theprocess inthetaking ofthe subjudicedecision Appealallowed 5 Casesreferredto Bagdassananv TheElectricityAuthonty ofCyprus

(1968)3 CLR 736, Messantouv TheCyprus BroadcastingCorporation

(1972)3 C L R 100, Theodondes ν Ploussiou

(1976)3 CLR 319, TheCyprusTounsmOrganizationν HadjiDemetnou

(1987)3C LR 780, 10 Hadjianastassiouν TheRepublic

(1982)3C LR 1173, Louca ν ThePresidentofthe Republic

(1983)3 C L R 783, 77ieAftomey-Genera/o/ihei?epi/6fc:v Ibrahim 1964 C LR 195. The Reference Re Language Rightsunder the ManitobaAct 1870

(1985)1 9 D L R (4th)1, 15 ThePresidentof the Republic ν Louca

(1984)3C LR 241, Josephmv TheRepublic

(1986)3 CLR 111, Charalambousv TheRepublic

(1986)3 C L R 557, Kazamiasν TheRepublic

(1982)3 CLR 239, Andreou and Othersν TheRepublic

(1975)3 CLR 108, 20 TheBoardfor Registration of ArchitectsandCivilEngineersν Kynakides

(1966)3CLR 640, Pastellopoulosν Republic

(1985)2 CLR 165 Appeal. Appeal againstthejudgmentofaJudge of theSupreme Court 25 (Pikis,J )given on the 16th July, 1987 (RevisionalJunsdicbon Case No 725/85)* whereby the decision of the Public Service Commission to appoint the interested parties to the post of Conservatorof Forestswas declarednullandvoid. 30 N. Charalambous,Senior Counselof the Republic, for the appellant K.Talandes, forthe respondent Cur adv. vult 'ReportedIn

(1967)3CLR 1130 1193 Republicv.Kyriacou

(1987)Thefollowingjudgmentswere read: TRIANTAFYLLIDES P.:Atthisstage of the proceedings inthe present appeal thisCourt hastopronounce on the constitutional validity of the constitution of the appellant Public Service Commission. The crusial issue in this respect is the constitutionality of subsection

(3)of section 4of the Public Service Law, 1967 (Law 33/67), which empowers the President· of the Republic to terminate in the public interest the appointment of the Chairman orof any other member ofthePublic Service Commission. 10 The learned trialJudge found thatsection 4

(3)ofLaw33/67is unconstitutional because it conflicts with Article 124.5 of the Constitution, which providesthat a member ofthePublicService Commission shall not beremoved from office except on the like groundsand inthelikemannerasaJudgeoftheHighCourt (now 15 of the Supreme Court). The trial Judge went on to find, further, thatsection 4

(3)ofLaw33/67interfereswiththeindependenceof the Public Service Commission and he held, consequently, that, because of the said section 4

(3), the Public Service Commission was uncostitutionally constituted. Asa resulthe annulled thesub 20 judice in the proceedings before him decision of the Public Service Commission. Our case-law (see, inter alia, Bagdassarian v. The Electricity Authority of Cyprus,

(1968)3 C.L.R. 736, Messaritou v. The Cyprus Broadcasting Corporation,

(1972)3 C.L.R. 100, 25 Theodorides v. Phussiou,

(1976)3 C.L.R.319, and 77ie Cyprus Tourism Organization v.HadjiDemetriou,Revisional Jurisdiction Appeal No. 665, determined on 6 November 1986 and not yet reported)* has established that the Public Service Commission which was set up under Law 33/67 is not the Public Service 30 Commission provided forbyArticle 124oftheConstitution,buta new Public Service Commission set up for the purpose of functioning as a substitute for the Public Service Commission provided for by the saidArticle 124of the Constitution, because thatCommissionhasceasedtoexistandfunction eversince1964. 35 Consequently, paragraph

(5)ofArticle 124of the Constitution isnotdirectlyapplicable tothePublicServiceCommission which wasset up under Law 33/67 and, therefore, section 4

(3)of Law 33/67 isnot inconflict withsuchparagraph

(5). 'Reportedin

(1987)3CLR.780. 1194 5 3 C.L.R. Republicv.Kyriacon TrtantafpUIde· P. Thesettingup of anewPublicService Commission underLaw 33/67 wasjustified by the law of necessity (see, inter alia, inthis respect, Hadjianastassiou v. TheRepublic,

(1982)3C.L.R. 1173, 1179, Louca v. The President of the Republic,

(1983)3 C.L.R. 5 783, 788, and, also, 77ie Attorney-General of the Republic v. Ibrahim, 1964 C.L.R. 195, which was referred to with approval bythe Supreme Court ofCanada in 77ieReference Re Language Rightsunder theManitobaAct 1870,

(1985)19D.L.R. (4th)1). The new Public Service Commission, which was set up under 10 Law 33/67, has to exist and to function in a manner as closely analogousaspossibletothePublicServiceCommission provided for by Article 124 of the Constitution, because otherwise the setting up of the new Public Service Commission cannot be justified by the «law of necessity»; and an indispensable attribute 15 both of the Public Service Commission provided for by the Constitution and of the new Public Service Commission which was set up under Law 33/67 is its independence, for which the security of tenure of itsmembers isan essential prerequisite. Ithas to be examined, therefore, whether section 4

(3)of Law 20 33/67 iscompatible with the independence ofthe PublicService Commission which wassetup under Law33/67;and concern in this connection has been expressed in 77ie President of the Republic v. Louca

(1984)3 C.L.R. 241 and in subsequent cases such asJosephin v. TheRepublic

(1986)3C.L.R. 111. 25 Afterhavingcarefully weighedallrelevantconsiderationsIhave reached the conclusion that it has not been established to my satisfaction that section 4

(3)of Law33/67 waseither intended to be, or since its enactment has been, or can be, used for the purposeofinterferingwiththeindependence ofthePublicService 30 Commission which was set up under Law 33/67; and it isto be noted that even when thesaidsection 4

(3)wasresortedtobythe Presidentofthe Republic inordertoterminatethe appointments, inthepublicinterestaccordingtohisview,oftwomembersofthe Public Service Commission ina manner not inany way affecting 35 the independence of the Public Service Commission, itwasheld (see Louca v. The President of the Republic, supra) that action taken by the President of the Republic under such section 4

(3)is subject tojudicialcontrolbythe Supfeme Court. Inmyviewthe existence of judicial control eliminates any risk 40 that the powers of the President of the Republic, under section 4

(3)of Law33/67,may beused toundermine the independence 1195 TrtantafyllidesP. Republicv.Kyriacou

(1987)of the Public Service Commission and itshould, also, dispel any anxietyofanymemberoftheCommissionthathis independence isthreatened because of theexistence ofthesaidsection 4

(3). Inthe lightof allthe foregoing Icannotholdthatsection 4

(3)of Law33/67 isinvalid eitherbecause itconflicts withArticle 124of 5 . the Constitution or because it is incompatible with the essential prerequisite of the independence of the Public Service Commission,and,therefore, theconstitutionoftheCommissionis notvitiated bythe existence ofthe said section 4

(3). Inany event, Ihave noted with satisfaction that a Billhasbeen 10 sent by the Executive to the House of Representatives for the purpose of repealingsection4

(3)ofLaw33/67andsubstitutingit with a provision modelled on paragraph

(5)of Article 124of the Constitution, inordertoavertanydoubt regarding independence ofthePublicServiceCommissionwhichwassetupunderLaw33/ 15 67;and, actually,asimilarprovision hasalready been enacted, as anamendment tothePublicEducationalServiceLaw, 1969(Law 10/69).in respect of the Educational Service Commission. In concluding I should, in addition to my finding that the constitutionofthePublicServiceCommissionisnotvitiatedbythe 20 existence of section 4

(3)of'Law 33/67, stressthat I would not,m anyevent, be prepared toholdthattherecanbeannulledthe sub judice decision of the PublicService Commission since ithasnot been shown that the alleged invalidityofthesaid section 4

(3)isin anyway directlyrelated tothethemanner inwhichsuch decision 25 was reached (see, inter alia, Charalambous v. The Republic,

(1986)3C.L.R.557). Intheresultthisappealshouldbeallowed,withoutanyorderas to its costs, and the cross-appeal will be fixed for hearing in due course. A.LOIZOUJ.: The question of the Constitutionality of section 4

(3)of the Public Service Law 1967 (Law No. 33 of 1967 heareinafter to be referred toas the Law) was raised for the first time in the case of Louca v. The Republic

(1983)3 C.L.R. 783 whereTrtantafyllides P.,hearingthecaseinthefirstinstanceheld 35 theview thatalthough the said provision was contrary to Article 124

(5)of theConstitution itwasjustified bythe Lawof necessity. InthisrespectTriantafyllides, P.,atp. 789hadthistosay:- 1196 30 3C.1 R. 5 Republicv.Kyrlacou A.L0U011J. «Asalreadystatedthevesting,bythesaidsection 4

(3),inthe PresidentoftheRepublicoftherighttoterminateinthepublic interest the services of a member of the Public Service Commission is a legislative extension of the powers of the President of the Republic under the Constitution which can only bejustified bythe 'law of necessity' inthe same context inwhichthesettingupbymeansofLaw33/67ofanewPublic Service Commission is found to be justified by the 'law of necessity'». 10 The Louca case was one challenging the validity of the termination bythe Presidentofthe Republic undersection 4

(3)of the Law of the services of members of the Public Service Commission. The sub-judice termination, having been annulled, an appeal was filed against the annulling judgment but after a 15 statement made bythe parties,thetworespondents inthe appeal asked for leave to withdraw their recourses It may be said here that the question that was raised by this course of events was whether anappeal could bewithdrawn orabandoned without the leave of the Court or only with such a leave as a matter of 20 discretion possessed by itunder the relevant Rules of Court, and whether a recourse filed under Article 146 of the Constitution could likewise be withdrawn, discontinued or abandoned as of rightbyalitigantoronlywiththeleaveoftheCourt.Thejudgment in that appeal is reported as The Republic v. Louca and Others 25

(1984)3 C.L.R. 241 In order to complete the picture as regards the circumstances under which these recourses were withdrawn, it may be mentioned here that as itappears from the factual backgroundof thecaseinmyjudgmentatp.247, «thispositionwasreachedasa 30 result of an overall settlement of the relevant recourses andthat the applicants were expected to withdraw them having been apparently duly compensated.» In delivering my judgment on that issue in that appeal Imade the following observations atpp. 251-252. 35 «Before concluding and in view of the importance of the issueoftheconstitutionalityofsubsection3ofsection4ofthe Public Service Law 1967, and of the factthatsame refersto thepowersofthePresidentoftheRepublictoterminateinthe publicinteresttheservicesoftheChairmanoranyMemberof 1197 A.LolzouJ. Republicv.Kyriacou

(1987)the Public Service Commission, the whole matter should be reconsidered bytheappropriateOrgansoftheRepublicinthe light of the provisions of Article 124, para. 5, of the Constitution which provides 'a Member of the Commission shall not be removed from office, except on the likegrounds 5 and inthelikemannerasajudgeoftheHighCout\ andinthe lightofArticle47,para (f)andArticle 153,paras.7and8ofthe Constitution.» Observations to the same effect were made by Sawides J., in thesame caseand inthe caseof Kazamiasv.TheRepublic

(1982)10 3 C.L.R. 239 at p. 301 which he also reiterated in the case of Charalambous v. The Republic

(1986)3 C.L.R.

1. Similar observations appear in otherjudgments delivered inthat case. After the delivery of the judgments in that appeal allowing the withdrawal of the recourses, the appeal and cross-apppeals were 15 alsowithdrawn and dismissed with the leave of the Court. The Executive soon thereafter, introduced legislation bywhich there waseffected an amendment tothecorrespondingsectionof the Public Educational Service law
2. Moreover a Bill was published in the official Gazette of the Republic of the 28th 20 November 1986, aiming at effecting changes to section 4 of the Law,inordertoprovide, interalia,thatthemembersofthe Public ServiceCommission cannotberemovedfrom office exceptonthe likegrounds and inthe likemannerastheJudgesofthe Supreme Court, which, however, has not yet been enacted by the House 25 and which was obviously the outcome of the observations made by this Court in connection also with the settlement that was effected regarding the termination of the services of those members ofthe PublicServiceCommission.Itappears,however, thatthe delaymusthavebeen duetothefactthatthisamendment 30 was left to be introduced as part of a bigger revision of the Law which was negotiated in the Joint Personnel Consultative Committee between theGovernment andtheCivilServiceTrade Union following the prescribed procedure for negotiations and reachingatsolutionsinmattersrelatingtotheindustrialrelationsof 35 Government and itsemployees.Moreoverthetenorofsubsection 3 isnothing more than the power claimedtobe possessed by the Executive branch of Government under the general principlesof Administrative Law, namely the administrative measure. Ido not intendtoelaborateonthispoint,whichinfactcamebeforetheFull 40 1198 3C.L.R. Republicv.Kyriacou A.Lolzou J. BenchofthisCourtinthecas*"*<">fTelemachos Andreou and other v. The Republic,

(1975)3 C.L.R. 108,but no judgment was ever deliveredbecause inviewofthesuperveningeventsof 1974,they were struck outas abated. 5 Section 4

(3)ofthe Lawwaspresumably aprovision that would enable the President of the Republic to terminate in the public interest the services of the members of the Public Service Commission in case for example there were Constitutional and other radical changes in Cyprus that necessitated the bringing to 10 an end ofthe overall structure of the Public Service Commission, asestablished bythesaid Lawas atemporary measure. To my mind the developments which have taken place since Louca case (supra)have ineffect and for all intentsand purposes rendered inoperative thesaidsub-section and innowaycould be 15 invoked asconstituting an interference with the independence of themembersofthePublicServiceCommission.Infactitcould not be saidand ithasnotbeen shown that ithasinterfered orraiseda reasonable probability that it could interfere with the independence ofitsmembers. 20 .No doubt legislation introduced in derogation of the Constitution hastobejustified underthewellestablished doctrine of necessity which can be invoked under certain prerequisites as expounded byJosephidesJ., inthe case of the Attorney-General of the Republic v. Mustafa Ibrahim 1964 C.L.R. 195, namely 25 that (a) an imperative and inevitable necessity or exceptional circumstances, (b) no other remedy to apply, (c) the measures taken must be proportionate tothe necessity and (d)itmustbeof a temporary character limited to the duration of the exceptional circumstances. Moreover a Law so enacted is subject to the 30 control·of the Court which has to decide whether the aforesaid prerequisitesaresatisfied, whether there existssuchnecessity and whether the measures taken were necessaryto meet it. Ihad myselftheoccasion toexpound myviewsonthisdoctrine inthecaseofRitaMessaritouv.CyprusBroadcasting Corporation 35

(1972)3 C.L.R 100 where Iheld that the prerequisites must be satisfied before the Law or doctrine of necessity, becomes applicable. After that it is a question to be determined in the circumstances of each case whetherthelegislativemeasure taken was justified in the circumstances and also whether it was not a 40 wider measure than what it ought to have been in the circumstances. 1199 A.LoUouJ. Republicv.Kyrlacon

(1987)1abide by these views and Ihold that the legislative measures taktn to meet a necessity can be chosen from a number of alternative solutions but they have to be absolutely necessary to meet such a situation Therefore though the Public Service Commission set up by the Law is a substitute organ to that 5 provided by the Constitution, yet any deviation from the provisions of the Constitutionshould be limited tothe extentthat itisabsolutely necessary tomeetthenecessity createdandthatthe rest of the provisions of theConstitutionapply, particularly those that safeguard its independence, and give it the character 10 envisaged by the drafters of theConstitution. It is in this context that the case of Theodondes and Others ν Ploussiou

(1976)3 C.L R.319 should be viewed. For all the above reasons the appeal is allowed but in the circumstances therewillbe noorderas tocosts 15 MALACHTOS J.: I would also allow the appeal as Ihold the view that subsection

(3)Of section 4 of the Public Service Law, 1967 (Law33/67), which empowers thePresidentof the Republic to terminate in the public interest the appointment of the Chairman or of any other Members of the Public Service 2 0 Commission, is not unconstitutional for the reasons given by the judgments just delivered by the President of the Court and my brotherJudge A Loizou SAWIDES J . - This is an appeal by the Republic of Cyprus, respondent in Recourse No 725/85, against the judgment of a 25 Judge of thisCourtintheexercise of theonginaljunsdiction ofthe Court whereby he allowed the recourse of the applicant and annulled the promotionof the interested parties,Τ Tsintides and Chr Alexandrou to the post of Conservator of Forestswhich was decided by the Public Service Commission. 30 The applicant, respondent in this appeal, challenged the promotion of the interested parties on the grounds of wrongful exercise by the Public Service Commission of its discretionary powers, for illegal composition of the DepartmentalCommittee andfor reasons ofconstitutionalityoftheprovisions ofsection4

(3)3 5 of the Public Service Law, 1967, Law 33/67. The learned tnal Judge dismissed therecourse on allothergrounds relied uponbut accepted it and annulled the sub judice decision on the ground 1200 3C.L.R. Republicv.Kyriacou Sawldea J. that the provisions insection 4

(3)of Law 33/67 under which the members of the Commission serve, are contrary to the Constitution. The learned trialJudge reached the conclusion that the termsof office laid down bysection 4

(3)ofthe Public Service 5 Law (33/67) under which themembers ofthe Commission serve, are contrary to the Constitution and deprive the body of the attributesof independence laid down bythe Constitution. Section 4

(3)of Law 33/67 empowers the President of the Republic toterminate at anytimethe services ofthe chairman or 10 any member of the Public Service Commission on grounds of public interest. Theappeal inthepresentcaseisdirectedagainstthatpartofthe judgment of the trial Judge whereby he found that the terms of office laiddown bysection 4

(3)areviolatingthe Constitution. 15 Thesolequestion whichposesfor consideration iswhether the trial Judge was correct in finding that the sub judice decision should beannulled on this ground, Thesubmissionofcounselfortherespondentinthisappealwas thatsuch provision wasviolatingArticle 124.5ofthe Constitution 20 which provides that «a member of the Commission shall not be removed from office except on the like grounds and the like manner as ajudge of the High Court.» Iagree withthe resultreached bythemajority ofthisCourtthat the appeal should be allowed and the decision of the trial Court 25 should be reversed but for different reasons than those already mentioned bymybrethren. My approach in this appeal isthe same as that in the case of Charalambous v. The Republic

(1986)3 C.L.R. 557, in which I rejected asimilarsubmissionmadebycounselforapplicantonthe 30 ground thatsuch mattercanonlybeconsidered ifthe termination of the term of office of a member of the Public Service Commission before itsexpiration comesforconsideration before thisCourt on the application of such member. The question of constitutionality of section 4

(3)of Law 33/67 35 was raised for the first time inthe case of Louca v. The President oftheRepublic

(1983)3C.L.R. 783,whereTriantafyllides, P.held the viewthatalthough theprovisionsofsection4

(3)ofthe Public Service Law were contrary to Article 124.5 of the Constitution, 1201 SawldesJ. Republicv.Kyriacou

(1987)they were justified by the law of necessity. The relevant passage at p.789,reads as follows: «Asalreadystatedthevesting,bythesaidsection4

(3).inthe PresidentoftheRepublicoftherighttoterminateinthepublic interest the services of a member of the Public Service 5 Commission is a legislative extension of the powers of the President of the Republic under the Constitution which can only bejustified bythe lawof necessity inthesamecontextin which the setting.up by means of Law33/67 of a new Public Service Commission is found to be justified by the 'Law of 10 necessity'.» Appealswerefiled againsttheabovejudgment (See Republic v. Louca and Others

(1984)3 C.L.R. 241) and in the course of the hearing of the appeals and cross-appeals counsel for the parties made a statement to the effect that the appellants abandoned or discontinued their appeals and the cross-appeals and the two respondents in person asked to withdraw their recourses. Such course was followed as a result of an overall settlement of the relevant recourses by means of which the respondents were expected to withdraw them having been apparently duly compensated. The question, however, arose for consideration by the Full Bench, whether an appeal, orarecourse under Article 146of the Constitution, couldbewithdrawn orabandoned withouttheleave of the Court or only with such leave. The majority of the Court 25 (Pikis J. dissenting) found that the appeals and cross-appeals shouldbe dismissed and therecoursesstruck out.Some members expressed the opinion that the recourses had been deprived of their object. Pikis, J. in his dissentingjudgment refused leave for the withdrawal of the appeals and dealt with the constitutionality 30 of section 4

(3), concluding that the law of necessity was not applicable and that sub-section

(3)of section 4 of the Public Service Law is unconstitutional. The question of the constitutionality of section 4

(3)was not considered by the other members of the Full Bench as the issue 35 before them was notargued andtheyhad onlytodecide whether the appellants were entitled to withdraw their appeals and the respondent their cross-appeals and the question was left open. Certain obiterviews,however,wereexpressed bysome members of the Court, that in view of the important constitutional issues 40 1202 15 20 3C.L.R. Republicv. Kyriacou SawtdesJ. raised the position should be reconsidered by the appropriate organs of the Republic so thatthe independenceand impartiality of the PublicService Commission be safeguarded. Infact I made the following observations atρ 253:5 «Due to the importance of the functions of the Public Service Commission and to secure their impartiality and independence from governmental influence, the holding of office by itsmemberswas safeguarded forthedurationoftheir term ofoffice byparagraph 5ofArticle 124 oftheConstitution 10 which provides that: Ά member of the Commission shall notbe removed from office except on the like grounds and in the like manneras a Judge of the HighCourt'. 15 20 25 30 35 40 InKazamias v.TheRepublic

(1982)3 C.L.R.239,atp.301, indealing with theobject of Article 125.1 of theConstitution, Isaid: "Theobject of theintroduction inourConstitutionof Article 125.1, as already explained, was to entrust the safeguarding of the efficiency and proper functioning of the public service of the Republic, expressly including the exercise of disciplinary controlover public officers, tothePublic Service Commission, anindependentandimpartial organoutsidethe governmental machinery,and,atthesame time safeguarding the protectionof the legitimate interests of public officers.' The power to appoint a member of the Public Service Commission was vested in the President and Vice-President of the Republicby Article 47(0 of theConstitution. As a result of the intercommunaltroubles and the non participation of the Turkish members of the Public Service Commission in such Commission, and the fact that its functioning in the compositionprovidedbyArticle 124oftheConstitutioncould not be cannedout,thepower toappointthe members of the PublicService CommissionbecamevestedinthePresidentof the Republic under section 4

(1)of Law 33/67. By the same Law, the number of its members was reduced to 5 (one Chairman and4 members) andtheirtermof office, subject to renewal, wasfixedat6years(whichwas inlinewiththeperiod provided by Article 124 of the Constitution). Undersection 4

(3)of Law 33/67 the President of the Republic may at any time terminate the appointmentof the Chairman or of an^ 1203 S a w i d e s Λ. Republicv. Kyriacou

(1987)other member of the Commission if he considers itto be in the public interest.» The same question was raised once again before this Courtin the case of Josephin v. The Republic

(1986)3 C.L.R. 111. in which, Triantafyllides, P.,annulled thepromotions inquestion on another ground, but making reference to the views expressed in 77iePresidentof the Republic v. Louca (supra)stressed onceagain the need for urgent consideration of the matterby theappropriate organs of theState. 5 Finally, the same issue was raised in Charalambous v. The 10 Republic (supra)tothe result of which reference has already been made. Indealing with this issue, in Charalambous v. The Republic Isaid the following atpp. 569, 570:«What was in issue in the case of Louca v. The Republic (supra) was the dismissal of a member of the Public Service 15 Commission on grounds of public interest and should be differentiated from the present case. The opinions expressed in thatcase by both the President of theCourtwho heardthe case inthefirst instanceandall members of theFullBenchon appeal, referred only to the power of the President of the 20 Republic under section 4

(3)of Law 33/67 to dismiss a member of the Public Service Commission. In my obiter opinion inthatjudgment I observed thatthefunctioning ofthe P.S.C in the composition provided by Article 124 could not be carried out as a result of the intercommunaltroubles and 25 the non participation of theTurkish members of the P.S.C.in such Commission and as a result the power to appoint the members which under Article 47(f) of the Constitution was vested in the President and Vice-President of the Republic, became vested tothe Presidentof the Republic undersection 30 4

(1)of Law 33/67; also that the term of office provided by Law 33/67 was inlinewith theperiod provided by Article 124 of theConstitution.Assuming thatsub-section

(3)of section 4 is unconstitutional, a question which Iam not proposing to decide in this case for the reasons I shall shortly explain, and 35 which Ileaveopentobe decidedinapropercase inwhichthe power of the President to dismiss a member prior to the expiration of his term of office will be at stake, the unconstitutionality of a provision in a law which can be 1204 3 C.L.R. Republicv. Kyriacou S a w i d e a J. severable from the rest, without the object of such law being defeated, cannotrenderthe whole law unconstitutional 5 10 15 Inthepresent case I amnotinvited todecide thevalidity of an act or decision taken under the provisions of section 4

(3), namely the termination of the term of office of a member of the ΡS C before its expiration ThisCourtdoes not examine in abstracto the constitutionality of a particular provision in a law (inthepresentcase section4

(3))butadefinite issue arising in the case As very rightly observed by the President of this Court in Josephm v. The Republic (supra), questions of constitutional nature are not to be decided unless it is really necessary Counsel for applicant has contended that in view of the provisions of sub-section

(3)of section 4, thereisa possibility of adecision of theΡ S C tobetaken underpressure andlack of impartiality Bias and lack of impartiality arematterswhich have to be established and the burden of proof lies upon the person alleging same » I fully endorse what I said in Charalambouscase inthis respect, 20 and I adopt the above as applicable mutatis mutandis in the present case Beanng in mind the above Ifind that the respondent had no legitimate interesttochallenge theconstitutionalityof section 4

(3)namely,thenghtof the Presidentof theRepublic toterminatethe 25 term of office of a member of the Public Service Commission before its expiration, as contemplatedtherein Such mattercould be challenged by a member of the Commission if and when his term of office was terminated,as alegitimate interest of his would have been affected entitling him to seek protection under the 30 Constitution,as in Louca case (supra) Before concluding, I wishto observe thatthe remarks made by the Court in 7?ie Republic ν Louca and Others and other cases referred hereinabove as to the need for reconsideration of the matter by the appropnateorgans of the State has found response 35 and infact alaw hasalready been enactedconcerningthetermsof office of the members of the EducationalService Commission,in fullcompliancewiththe observationsmadeby the CourtinLouca case, and that two Bills were laid before the House of Representatives the one in November, 1986, and the other in 1205 S a w i d e * J. Republicv.Kyriacou

(1987)May, 1987 with the object of bringing the terms of office of members of the Public Service Commission in line with the relevant provisionsof the Constitution. In the light of the above thisappeal should be allowed and the cross-appeal will have to be heard separately as it has not been argued atthisstage. 5 LORISJ.:Themain issueraisedbythepresentappealissetout in ground one thereof, whereby the appellant Commission complains «that there was no reason to decide a constitutional issue 'in abstracto' inasmuch asinthisparticularcasesection 4

(3)10 of Law 33/67 has not been applied and no question for its application arose.» Before proceeding todecidethisissue, I consider itpertinent to refer briefly tothe legal aspectofthisissue: The Full-Bench of this Court in the case of The Board for 15 Registration of Architects and Civil Engineers v. Christodoulos Kyriakides

(1966)3 C.L.R. 640 has laid for the first time the principles governing the exercise of judicial control of legislative enactments in considering the question of the constitutionalityof a statute. Josephides J., delivering the unanimous judgment of 20 the Court intheaforesaid appealstated interaliathefollowing: (at p. 655). «Thejudicialpowerdoesnotextendtothedeterminationof abstractquestions:Ashwander v.TennesseeValleyAuthority 297U.S.288

(1935);80Law.Ed.688.'Itisnotthehabitofthe 25 court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case': Burton v. United States, 196, U.S.283,295;49Law. ed. 482,485, 25 S. Ct. 243. The Court will not 'formulate a rule of constitutional lawbroaderthanisrequiredbytheprecisefacts 30 to which it isto be applied': Liverpool, N.Y.&P.S.S. Co.v. Emigration Comrs. 113 U.S. 33; 28 Law. ed. 899, 5 S. Ct. 382.» Some ten years laterthe FullBench of thisCourt reiterated the above principle inthe case of Theodorides &Others v.Ploussiou 35

(1976)3 C.L.R. 319; the learned President of this Court in delivering the judgment in theappeal aforesaid stated (atp. 340) the following: 1206 3C.L.R. Republicv. Kyriacou LoriaJ. «in examining the above issue in the present proceedings we are notconcernedinabstractowiththeconstitutionality,as such, of section 15

(2)of Law 48/63; our only concern is the determination of the outcome of the recourse of the 5 respondent, made under Article 146.1 of the Constitution; and in proceedings in a recourse of this nature this Court,as an administrative Court,is not called upon topronounceon the constitutionality of a statute in order to declare it to be constitutional or unconstitutional generally for all purposes, 10 but itonly has toexamine theconstitutionality of astatute,on which the subject matter administrative act or decision was based, in order to decide about the validity of such act or decision; thus, an Objection of unconstitutionality' is considered only in relation to the issue of the validity of the 15 subject matter of the recourse and is decided solely for the purposes of the particular case (see, in this connection, Βλάχου Ή Έρευνα της Συνταγματικότητος των Νόμων', 1954, σελ. 106, Σγουρίτοα 'Συνταγματικόν Δίκαιον', 3rd ed., 1965, vol. A, p. 66, Burdeau 'Traite*De 20 Science Politique",2nd ed.,vol. 4, p.469).» Inthisparticular instancethetask of the learned trialJudge was confined in deciding whether it was reasonably open to the appellant Public Service Commission to appoint the interested parties to the post of Conservator of Forests inpreference toand 25 insteadof the applicant.Thisisabundantlyclearfrom theprayerof the recourse as well as from the legal points on which same is based. Determination of theconstitutionalityof section4

(3)of Law 33/ 67 was not «absolutely necessary toa decision of this case», in as 30 much as s. 4

(3)of Law 33/67 was neitherapplied nora question of its application arose; and I am inclined to agree with the submission of learned counsel appearing for the appellant that there was not even an allegation to the effect that the section aforesaid might have influenced or did in fact influence the 35 independence of the members of the P.S.C. in the case under consideration. Inthe circumstances I holdtheviewthattheconstitutionalissue was decided «inabstracto» contrarytotheprinciplessetout above, and thepresent appeal musttherefore, be allowed. 40 STYLIANIDES J.: The respondent by means of the recourse challenged thevalidity of the appointmentof Takis Tsintides and Christos Alexandrou (the interested parties) to the post of Conservatorof Forest. 1207 Stytlanldu J. Republicv.Kyriacou

(1987)This appeal is directed against a decision of a Judge of this Court,wherebyheannulledthepromotiontothepermanentpost ofConservatorofForestofthetwointerestedpartiesbythePublic Service Commission on the sole ground that the appellant Commission hasnocompetence andpower, duetothefact that 5 thetermsofservicelaiddowninsection4

(3)ofthePublicService Law, 1967 (Law No. 33/67), under which the members of the Commission serve, are contrary tothe Constitution and deprive the body of the attributes of independence safeguarded by the Constitution,asaprerequisitefortheexerciseofthecompetence 10 conferred onthePublicServiceCommission. PartVII,ChapterI,Article124oftheConstitutionprovidedfor theestablishmentofaPublicServiceCommission,consistingofa Chairman and nine other members appointed jointly by the PresidentandtheVice-PresidentoftheRepublic.Sevenmembers 15 of the Commission shall be Greeksandthree membersshallbe Turks. ThisCommission was set up and was functioning in the first yearsafter Independence.ItspowersaresetoutinArticle

1. Its independence was safeguarded by a number of provisions. 20 Reference maybemadetotwoofthem:Article166chargedtheir remuneration on the Consolidated Fund. Article 124.5 secured theirtenureofoffice. Itreads:«
2. Amember of the Commission shall not be removed from office exceptonthelikegroundsandinthelikemanner 25 asajudgeoftheHighCourt.» Duetothewellknowneventsof1963-1964andthewithdrawal of the Turkish members of the Commission, the present Public ServiceCommission wassetupbythePublicServiceLaw,1967 (LawNo.33/67)assubstitutetothePublicServiceCommission 30 envisagedbytheConstitution,whichbecamedefunct.Itsfunctions, assetoutinsection5ofLaw33/67,arealmostidenticalwiththose entrusted tothePublicServiceCommission underArticle125of the Constitution, with the major difference that the definition of «PublicService»insection2oftheLaw,encompassesonlyservice 35 under the Republic.The establishment of thisCommission was justifiedbythe«lawofnecessity»,asexpoundedinthecaseofThe Attorney-GeneraloftheRepublicv.MustafaIbrahimandOthers, 1964 C.L.R.
3. (Yervant Bagdassarian v. The Electricity Authority of Cyprus and Another

(1968)3 C.L.R. 736; Rita 40 1208 3C.L.R. Republicv.Kyriacou Styllanlde· J. Messaritou v. The CyprusBroadcasting Corporation

(1972)3 C.L.R. 100;D.TheodoridesandOthersv. S.Ploussiou

(1976)3 C.L.R. 319.) The question in Ibrahim was whether a temporary 5 unconstitutionallaw,enactedinordertomeettheexigenciesofa state of emergency, could be valid. The principle that can be deducedfromIbrahimcaseisthattheCourtmaytemporarilytreat as valid and effective laws which are constitutionally flawed in ordertopreservetheruleoflaw.Whenitisimpossibletocomply 10 with the Constitution, the Court may allow the Government a temporary reprieve from such compliance in order to preserve society and maintain, as nearly as possible, normal conditions. The doctrine of «necessity» ismainlybased onthe maxim«salus populiestsupremelex». 15 JosephidesJ., atp.265setforth fourprerequisiteswhichmust be satisfied before the doctrine of «necessity» should apply to validateanotherwiseunconstitutionallaw:- (a) An imperative and inevitable necessity or exceptional circumstances; 20 (b)nootherremedytoapply; (c)the measure taken mustbe proportionate tothenecessity; and (d)itmustbeofatemporarycharacterlimitedtothedurationof theexceptionalcircumstances. 25 Itiswellsettledthatmeasures,taken incircumstancesallegedly justifying resort to the «law of.necessity» are subject to judicial scrutinyandcontrol-(Pastellopoulosv.Republic

(1985)2C.L.R. 165,p.178). Section4

(3)ofthePublicServiceLaw,1967providedthatthe 30 President of the Republic may at any time terminate the appointment of the Chairman or of any other member of the Commissionifheconsidersittobeinthepublicinterest. Thequestionofconstitutionalityofthisstatutoryprovision was raisedinLoucav. Republic

(1983)3C.L.R. 783-arecourseby 35 two members of the Commission, whose appointments were terminatedbythePresident. Thelearned PresidentoftheCourt, whoheard thecaseinthe first instance, held that, though itwascontrary and inconsistent withArticle124.5oftheConstitution,itwasjustifiedbythe«lawof 1209 Styllanldea J. Republicv. Kyriacou

(1987)necessity», but annulled the sub judice terminations on other grounds. An appeal was filed by the Republic, which was ultimatelywithdrawn,asanoverallsettlementoftherecourseshad apparently taken place. Observations obiter were made by a number of Judges, either expressly declaring that this statutory 5 provision isclearlyunconstitutional and notjustified bythe«lawof necessity», or that serious question of its constitutionality arose and that serious doubt was cast on its constitutionality and the whole matter should be considered by the appropriate organsof the Republic in the light of the provisions of the Constitution - 10 (Republic v.Louca and Others

(1984)3 C.L.R. 241(seepp.251, 252, .258, 269, 276, 277)). The President of the Court in a subsequent case -Josephin v.Republic

(1986)3 C.L.R. I l l , -in viewoftheobservation inRepublic v.Loucaleftthematteropen. Thereafter a Bill No. 28/86 was laid before the House by the 15 Executive, whereby section 4 of Law 33/67 was sought to be repealed and substituted by a new section. Subsection 6 of the new section 4 provided for the removal from office of the members of the Commission on the like grounds and in the like manner as Judges of the Supreme Court. 20 From the objects and reasons it is clear that this Bill was introduced for the removal ofdoubtsastothe constitutionality of this subsection 3, and the permissibility of its application by the «lawof necessity». ThisBillwasnot enacted bytheHouseofRepresentatives,asin 25 the meantime a comprehensive Bill,containing many provisions relatingtothePublicService-Bill16/87-whichwasthe outcome of deliberations between the Government and PASYDY (Pancyprian Trade UnionofCivilServants),wasplacedbefore the House. 30 Having regard to the above, I am of the opinion that the provisions of subsection 3 ofsection 4 have become inoperative and no President of the Republic mayexercise power underit.Its existence in the statute book, as aforesaid, cannot be validlysaid thatitinterferes inanywaywiththeindependence ofthemembers 35 of the Public Service Commission. Provision identical to paragraph 124.5of the Constitution was enacted by section 3 of the Public Education Service (Amendment) Law, 1987 (Law No. 65/87), which repealed and substituted section 4 of the basiclaw. 1210 40 3C.L.R. RepubUcv.Kyriacou Styllanldea J. Furthermore, ithas not been shown that, when the sub judice decision was taken the independence of the members of the Commission wasinanywayinterfered withbyit,orthattherewas any reasonable probability that it could be interfered. Ithas not 5 beenshownthattheprovisionsofsection4

(3)hadanyconnection or relation whatsoever with the process in the taking of the sub judice decision. The independence ofthemembersoftheCommission isavery material attribute, which has to be secured, preserved and 10 maintained. Anyderogation of itcannot be validated bythe «law of necessity», as it cannot satisfy the prerequisites for the application ofthisdoctrine. Forall the aforesaid reasons, Iwould allowthe appeal with no L»rderastocosts. 15 KOURRIS J.: This is an appeal against the first instance judgment ofaJudge ofthisCourtwhoallowedtherecourse(725/ 85) of the respondent against the promotions to the post of Conservator ofForestsofT.TsintidesandChr.Alexandrou which was decided by the respondent Public Service Commission and 20 annulled their promotion. Theapplicant-respondentinthisappeal-soughtthe annulment ot the decision of' the respondent Commission for wrongtul exercise of itsdiscretionary powers, for illegal composition of the Departmental Committee and forreasonsofunconstitutionalityof 25 theprovisionsofs.4

(3)ofthePublicServiceLawof 1967(33/67). The learned trial Judge in accordance with the established practice before dealingwith the question of unconstitutionality of the said section decided all the grounds on which the recourse relied arid dismissed them. (See, The Board for Registration of 30 Architectsand CivilEngineersv.ChristodoulosKyriakides,

(1966)3C.L. R640). Pikis, J. who decided the recourse appealed from had before him a submission bycounsel appearing for the applicant that the terms under which the Chairman and the members of the Public 35 Service Commission serve, deprive the body-of the safeguards envisaged bythe Constitution asa prerequisite for theexerciseof the powers vested in the Commission. The learned trialJudge in his very meticulous judgment, having referred to all the cases decided by the Supreme Court in its original and appellate 1211 KourrisJ . Republicv.Kyriacou

(1987)jurisdiction and having dealt with the «law of necessity» reached theconclusion that «thetermsofservice laiddown ins.4

(3)of the Public Service Law (33/67) under which the members of the Commission serve are contrary to the Constitution and deprive the body of the attributes of independence laid down in the 5 Constitution, asa prerequisite for the exercise of the competence conferred onthePublicServiceCommissionbythe Constitution.» Counsel for the Republic invited us to allow the appeal in the absence of any indication that departure from the Constitution with regard to the terms of service of the members of the Public 10 Service Commission undermines in point of fact their independence; therefore, we should allow the appeal on the ground that the learned trialJudge viewed the case inan abstract context. Further, remarks and observations made in the case of Republic v. Louca and Others,

(1984)3 C.L.R. 241 render 15 inoperative the provisions of s. 4

(3)of the Public Service Law, 1967 (33/67).No President of the Republic,we were told, would venture to rely on the provisions of s. 4

(3)of the law and dismiss members of the Public Service Commission. Furthermore, he contended thatithasnotbeen proved thatintakingthesubjudice 20· decision the Chairman and themembers oftheCommission were inpointoffact influenced bythepowersvestedinthePresidentof the Republicbys.4

(3)ofthelaw.Lastly,he arguedthats.4

(3)of thelawisnot unconstitutional. With due respect, counsel for the Republic misconceived the 25 effect of the decision here under appeal. The learned trial Judge held that an organ appointed and servingunderthetermsand the provisionsofs.4

(3)ofthelawisnotacompetentorganto assume thepowersvestedinthePublicServiceCommission envisaged by the Constitution. Consequently, it is not a question of bias of 30 membersoftheCommission becauseoftheprovisionsofs.4

(3)of the lawbut a question of proper composition oftheorgan trusted with constitutional powers. And the Public Service Commission set up under the provisions of s. 4 of Law 33/67 does not have these attributes. 35 The other suggestion that the observations by the Supreme Court inthe Loucas case (supra) rendered theprovisionsof s.4

(3)inoperative is wholly untenable. The observations were made obiter; s. 4

(3)remains in force and continues to define the legal regimeunderwhichthechairman andmembersoftherespondent 40 Commission serve. 1212 3 C.L.R. Republicv.Kyriacou Kourris J. Equallyuntenableisthesubmissionthatthecasewasdecidedin abstracto. Once the Court found, correctly in myjudgment, that the respondents as presently constituted could not exercise the powers vested in the Public Service Commission by the 5 Constitution, they were incompetent to assume any of those powers.Thatisthemainissueinthejudgment underappeal raised in connection with the validity of the actions of the respondents. Once they had no competence to make the sub judice decisions the appointments made were wholly void. 10 I now propose todeal with the constitutionality ofs.4

(3)of the PublicService Law, 1967 (33/67). Section 4

(3)of the law confers power on the President of the Republic toterminate atanytimethe servicesof the Chairman or any member of the Public Service Commission on grounds of 15 public interest whereas Article 124.5 of the Constitution reads as follows: «Amember of the Commission shall notbe removed from office except on the like grounds and inthe like manner as a Judge ofthe High Court.» 20 Acomparison of these two provisions leads to the conclusion thattheprovisionsofs.4

(3)ofthelawarecontrarytothetermsand conditions ofservice of members ofthe Commission laiddown in the Constitution. The services of a Judge of the Supreme Court cannot be 25 terminated exceptforthereasonsspecified inArticle153.7andin accordance with the procedure laid down in Article 153.8 of the Constitution. Termination of the services of a Judge of the Supreme Court is only permissible on account of mental or physical incapacity or infirmity as would render him incapable of 30 discharging the dutiesofhisoffice oronaccount ofmisconduct so declared bythe Council ofJudicature injudicial proceedings. The object of the Constitution istoentrench the independence of the members of the Commission by securing their tenure of office. The conferment of power onthe President ofthe Republic 35 to terminate their appointment violates the express provisionsof the Constitution. Itis,therefore, apparentthattheprovisionsofs.4

(3)ofthe law are incompatible with the Constitution and cannot be reconciled with it. Itprovides for the entrenchment of the independence of 1213 KourrUJ. Republicv.Kyriacou

(1987)members ofthe Commission and the question ariseswhether the «law of necessity» justifies the adoption of measures not contemplated bytheConstitution.Alawthusenacted issubjectto the control of this Court to decide whether there exists such a necessityandwhetherthemeasurestakenwerenecessarytomeet 5 it. The doctine of the «law of necessity» was expounded in the leading case of 77ie Attorney-General v. Ibrahim and Others, 1964 C.L.R. 195; it was explained that it is an extraordinary measure andcan onlybejustified tothedegreeandextentthatthe 10 necessity mandates for the sustenance of the constitutional order and the institutions envisaged thereby. The Public Service Commission set up by the Constitution consisted ot ten members; seven Greeks and threeTurks. Owing to the departure of the Turkish members of the Commission 15 during the well known events of 1963-1964 the legislature enacted the Public Service Law of 1967 (33/67) limiting the members of the Commission tofive Greeksinordertofillthe gap left bythe departure of theTurkish members. The question now arises: Did the legislature do what was 20 absolutely necessary in the circumstances or did it exceed it?A series of decisions of the Supreme Court recognize that the Commission is not the same body as the Public Service Commission provided for in the Constitution owing to the different numberofmembersinthecomposition ofthetwobodies 25 but does not render the Commission an unconstitutional organ. Considering the departure of the Turkish members and the provisions of s. 4

(3)of the Public Service Law of 1967 which provides for the terms of service of the members of the Public ServiceCommission Iamoftheviewthattheprovisionsofthesaid 30 section are unwarranted bythe exceptional circumstances. There is no doubt that the legislature had to resort to the «law of necessity» to make provision for the functioning of the Public Service Commission; and the Public Service Law, 1967 is founded on the «law of necessity» to make provision for the 35 functioning of the Public Service Commission; and the Public. ServiceLaw, 1967isfounded onthe«lawofnecessity».Numerical reduction of these members is not unconstitutional. But undoubtedly, the provisions of s. 4

(3)of the law cannot be considered as a necessary measure to meet the gap inthe Public 40 Service Commission created by the departure of its Turkish 1214 3 C.L.R. Republicv. Kyriacou Kourria J members.The provisions of s.4

(3)of the Law were not essential for the sustenance of the functioning of the Commission that collapsed with the withdrawal of itsTurkish members. Ithink my reasoning in reaching this conclusion is along the lines of the 5 decision of the case Pastelhpoulos v. The Republic,

(1985)2 C.L.R. 165, decided by the Full Bench, in connection with the extent of the measures taken which are necessary to meet a necessity under thedoctrine ofthe «lawof necessity». In that case itwas held that although the events of 1963-1964 10 offered justification for the establishment of a Military Court, the Court could neither be set up nor function outside the constitutionalframework governingtheexerciseofjudicial power. I fully agree and adopt what the learned trial Judge said in his judgment with regard to the Pastelhpoulos case (supra) on the 15 question raised before him, which isas follows: 20 25 «In much the same way and by the same process of reasoning, it was permissible for the legislature to make provision for the replacement of the Public Service Commissionthatceased tofunction asaresultoftheeventsof 1964 in order to ensure the functionability of an important institution of the State. But, neither the competence nor the legal framework out ofwhichthePublicService Commission should function could be other than those specified by the Constitution. Nor has suggestion been made that any necessity arose to depart from the constitutional framework other than provide for the re-establishment of the Commission after the departure of theTurkish members.» ForalltheabovereasonsIamoftheview tiv. thePublicService Commission thatwassetupand functions undertheprovisionsof 30 s.4

(3)ofthe PublicServiceLaw, 1967 (33/67)arecontrarytothe relevant constitutional provisions and for that reason they could notexercisethefunctions vestedbytheConstitution inthe Public Service Commission, as they have been deprived of the safeguards of independence contemplated by Article 124 of the 35 Constitution. In conclusion, Iagree with the learned trialJudge that the sub judice decision was taken by an incompetent body and it was rightly declared nullandvoidpursuant totheprovisionsofArticle 1215 KourrisJ. RepubUcv.Kyriacou

(1987)146.4 (b)of the Constitution. Iwould dismissthe appeal but with no order for costs. TRIANTAFYLLIDES P.:Inthe result thisappeal in allowed by majority with no order as to its costs. The Cross-appeal will be fixed for hearing later indue course. Appeal allowed by majority.No orderas to costs. 1216 5