clr/1987/1987_3_1557.pdf

(1987)Constitutional Law — House ofRepresentatives — Budget — Consolidated fund — Desnnction between expenditure charged on the consolidated fund and expenditure to be met t _<m the consolidated fund, but not charged thereon —Expenditure of theUst categorydoesnot require adoption bythe House. whereas expenditure of the second does require such adoption — Constitution. Articles

1. 81, 166.1, 167.1, 167.2, 167.
2. 5 Constitutional Law — Public Service Commission — Salanesof itsmembers — Charged on theconsolidated fund — Constitution, Art.
3. Constitutional Law — House of Representatives — Ambit of its powers — Constitution. Art. 61— V i e HousecanamendtheBudget—Noteworthy that relevant case law dealt with laws not involving amounts ciiarged on the consolidated fund. 10 Words and Phrases:'Law* in section 6of the Public Sen-ice(Amendment) Law 169/86— The'Budget Law» isnot a'law» in thesenseof thesection. The applicants are the chairman and members of the Public Service Commission. 15 Section6of Law33/67 providedthat«thereshallbepaidto the Chairman and the other members of the Commission such remuneration as may be determined by theCouncil ofMinisters». The Council of Ministersby decisions Nos.27.081and27.450 dulytaken on 8.5.86 and 31.7.86 fixed the basic salary of the Chairman of the Commissionat£9,160.-p.a.andthebasicsalaryofeachmemberat£7,850.-. 20 On7.11.86thePublicService(Amendment)Law. 1986(Law169/86)was enacted with retrospective operation asfrom 1.5.
4. Section 6 of the basic Lawwasrepealedandsubstitutedby section2of the new Law,andreadsas 2 5 follows:•
5. The remuneration of the Chairman and every member of the Commissionshallbedeterminedby Lawandshallnotbealteredto the disadvantage of theChairmanor the member aftertheir appointment». In the Budget laid before the House of Representatives for the financial 3 0 year 1987 the basic salaries of the Chairman of the Public Service Commission and of its members were shown as £9,160 and £7, 850, respectively, whereas in the Budget Law 8/87 as £8,539 and £6,900 respectively. Relying on the Budget Law 8/87 the respondent decided that the computation oftheremunerationoftheChairmanandofthemembersof the Commission asfrom 14.2.87 would be made on the basis of £8,539.- and £6,900.- p.a. respectively Hpnce thisrecourse. 1553 35 3 C.L.R. 5 10 Papaxenophontos &Othersv. Republic Held,annullingthesubjudice decision

(1)TheBudget isalaw thatmay be amendedby theHouseofRepresentatives inexercise of thelegislative power vested in it under Art 61 of the Constitution (Presidentof the Republic ν House of Representatives

(1985)3 C L R 1724, and President of the Republic ν House ofRepresentatives

(1985)3 C LR 2789) Itisnoteworthy thatnoamountcharged ontheConsolidated Fundwas involved in<jnyofthe aforesaid two Laws

(2)UnderArt 166 1 of theConstitutiontheemolumentsof themembersof the PublicService Commission are charged ontheconsolidated fund Under Art 167 2theestimatesofexpendituremtheBudgetshallshow separately (a) The total sums required to meet expenditure charged on the Consolidated Fund, and (b)Thesums respectively required tomeetother expenditure 15 20 Article81 of theConstitutionshould beread inconjunction withArt 167 4, which provides thattheexpenditure tobemetfrom theconsolidated fund but not charged thereon shall be submitted to the House of Representatives for adoption and ifadoptedshall be putintheBudget inrespect of that financial year TheBudget authonzestheexpenditure as nomoneycanbepaid outof the public Revenue without parliamentary authonry

(3)Theterm«Law»insection 6of Law 169/86does notincludethe Budget as itscontextpointsout 25 30 A charge on the Consolidated Fund does not require adoption by the House of Representatives, the sanction of the House is confined only to expenditure tobe metfrom theConsolidated Fundbut notcharged thereon {Article 167 4of theConstitution)

(4)It follows that the simple reduction in the Budget Law 8/87 of the applicants' salanes andtheconsequential reductionof thetotaloftheamount of charges on the consolidated fund are not a legislative act in the sense of section 6 of Law 169/86

(5)Inthelightof theabove thesubjudice actiscontrarytotheConstitution and the Law The salanes of the applicants continued to be as fixed by the Council of Ministers by theiraforesaid decisions dated 8 5 86 and31 7 86 Subjudice decision annulled No orderastocosts 35 Casesreferredto Panayidesv ThePublicServiceCommission{1972)3C LR 467, Presidentof theRepublic ν TheHouseofRepresentatives

(1985)3 C L R 1724, 1559 Papaxenophontos &Othersv.Republic

(1987)The President of the Republic v. TlieHouse of Representatives

(1985)3 C.LK J78y Recourses. Recourses against thedecision of therespondentswhereby the cornDUtation of the remuneration of the Chairman and the members of the Public Service Commission as from 14/2/87 would be made on the basisof £3,539.-and £6,900.- per annum respectively. 5 A.S. Angelides, for applicants inCase No.309/

1. X. Xenopoulos, for applicant inCase No.355/87, 10 P. Polyviou with G. Triantafylhdes, for applicant in Case No. 344/
2. K. Talarides, for respondents. Cur.adv. vult. STYL1ANIDES J. read the following judgment. The applicants 15 inthese threerecourses arethe Chairman and the membersofthe Public Service Commission. Therecoursesweretakentogetherastheyraisecommon points of fact and law. Theestablishment ofthepresent PublicServiceCommission by 20 the PublicService Law, 1967,(Law33/67)asthesubstitutetothe PublicService Commission envisaged bythe Constitution, which became defunct, wasjustified under the Lawof Necessity. The functions of thisCommission assetout inSection 5ofLaw 33/67 are almost identical with those entrusted to the Public 25 ServiceCommission underArticle125oftheConstitution withthe sole exception that the definition of «PublicService» inSection 2 of the Law encompasses onlyservice underthe Republic. Section 6ofLaw33/67 providedthat«thereshallbepaidtothe Chairman and the other members of the Commission such 30 remuneration as may be determined bythe Council ofMinisters». TheCouncil ofMinistersbydecisionsNo.27.081and27.450duly taken on 8/5/86 and 31/7/86 fixed the basic salary of the Chairman of the Commission at£9,160.-p.a. and thebasicsalary of each member at£7,850.-. 35 1560 3 C.L.R. Papaxenopoouto *& Others v.Republic Styliani<»eF.* On 7/11/86 the Public Service (Amendment) Law, 1986 (Law 169/86)wasenactedwithretrospective operation asfrom 1/5/
3. Section 6 of the basic Law was repealed and substituted by Section 2of the new Law,which reads asfollows:5 «6.The remuneration ofthe Chairman and every member of the Commission shall be determined by Lawand shall not bealteredtothedisadvantageoftheChairmanorthe member after their appointment.» On24/2/1987 theAccountant-General senttotheChairmanof 10 the Public Service Commission letter containing the sub judice decision. Bythisdecision thecomputation oftheremuneration of theChairman andofthemembersoftheCommission asfrom 14/ 2/87 would be made on the basis of £8,539.- and £6,900.- p.a. respectively. Hebasedhissuchdecision on theBudgetLaw, 1987 15 (Law 8/87), published on 4/2/87 and which according to the Accountant-General fixed the remuneration of the applicants as abovestated.Herequested thereturntohimofthechequeswhich had been issued for each one of them for the month of February inordertobe replaced byother cheques,asfrom the period 1/2/ 20 87 to 13/2/87 the calculation would be made on the basisof the previoussalary. On25/2/87 theChairmanoftheCommission repliedbyexhibit 2 attached to the recourse. The cheques were returned, with reservation of the rights of the applicants with regard to the 25 decrease of their remuneration, which was considered unconstitutional, contrary to Law, and in excess or abuse of power. Bythese three recoursesthe applicants seek the annulment of the decision contained in the aforesaid letter of the Accountant30 General, dated 24/2/87, whereby their respective remunerations were lowered. The case on behalf of the respondents was conducted byMr. K.C.Talarides, an advocate in private practice who was retained bytheAttorney-General ofthe Republic. 35 The subjudice decision wasbased on the Budget Law,
4. The statutory provision forthe determination ofthe remuneration of the applicants isSection 6 of Law 33/67 as amended by Law 169/86tobringitintoconformity withpara.4ofArticle 124ofthe Constitution. 1561 Stylianidee J. Papaxenophontos &Othersv.Republic

(1987)Was a law enacted pursuant to the provisions of Section 6 of Law 169/86,determiningthe remuneration ofthe applicants? In the Public Service Law, unless the context otherwise requires, «Law»includes any provision of a legislative nature and the Budget. 5 InPetrakisPanayides v. ThePublicSeivice Committor, {1972) 3 C.L.R. 467, A. Loizou, J. in dealing with the creation ol new post by the Budget, said thatthisislegallypossible tobesointhis way, since the Budget Lawislawand he referred tothe definition in Law33/

1. 10 The Supreme Court in its opinions under Article 140 of the Constitution in References 1/84 and 7/85 said that Budget is a Law that may be amended bythe House inexercise of itspower under Article61 that vests the House of Representatives with the legislativepower of theState. 15 TheEngagement ofCasualEmployees (Publicand Educational Service) Law. iy84, enacted by the House of Representatives prohibiting the engagement of casual employees wasthe subject lawin Reference 1/
2. The Court said that:•

(1)Prohibition of engagement of casual employees isnot 20 repugnant toorinconsistentwiththeprovisionsofArticles54, 61, 116, 167 and 168.1 of the Constitution because the House of Representatives, within the ambit of the exerciseof itspowers by virtue of Article 61 of the Constitution, has the right to prohibit or regulate by legislation, such as the sub 25 judice Law, the engagement of casual employees even if there has been approved for this purpose expenditure by means of the Budget of the Republic or by means of Supplementary Budgets.» (ThePresidentoftheRepublic v. TheHouse ofRepresentatives 30

(1985)3C.L.R. 1724.) In The President of the Republic v. The House of Representatives

(1985)3 C.L.R. 2789 the President of the Republic referred, under Article 140 of the Constitution, to the Supreme CourtforitsOpinionthequestionofwhethertheBudget 35 (Amendment) Law, 1985, wasrepugnant to, or inconsistent with the provisions of a number of Articles of the Constitution. The Supreme Court in its unanimous Opinion said that the House of Representativesvotesthe Budget LawunderArticles61and 81.1 1562 3 C.L.R. Papaxenophontos & Othersv.Republic Stylianldes J . of the Constitution and votesSupplementary Budget Laws under Articles61and 167.6 of the Constitution and further asitisto be inevitably inferred from the reasoning of the unanimous Opinion of the Supreme Court in Reference No. 1/84 the House of . 5 Representatives in the exercise of its legislative power, under Article61oftheConstitution, mayamendtheBudgetLawandthe Supplementary BudgetLaws. It isnoteworthy that no amount charged on the Consolidated Fund wasinvolved inanyof the aforesaid twoLaws. 10 The Financial Provisions in the Constitution are set out inPart XI. Under Article 166.1 the emoluments of the President of the Republic and the salaries of the Judges of the Supreme Constitutional Court and of the High Court, of the Artomey15 General and of the Deputy Attorney-General, of the AuditorGeneraland ofthe DeputyAuditor-General, oftheGovernor and the Deputy Governor of the Issuing Bank and of the membersof the PublicService Commission are charged on the Consolidated Fund. 20 The salariesof those organsof the State or officials of the State whom it isdesired to make more independent than the ordinary departmental officials are made charges on the Consolidated Fund. This is a necessary Constitutional provision in order to avoid special opportunity ofcriticizinginthe Houseeach year the 25 work of these officials. Itisfurther a salutary provision that marks andpreservestheindependence necessaryfortheperformanceof theirhighduties. Article 167 provides that the Minister of Finance in respect of every financial year causes to be prepared a comprehensive 30 BudgetoftheRepublicforthatyearwhich,whenapproved bythe Council of Ministers, shall be laid before the House of Representatives. Under para. 2 the estimates of expenditure inthe Budget shall showseparately:35 (a)Thetotalsumsrequiredtomeet expenditure chargedonthe Consolidated Fund, and (b)Thesumsrespectively required tomeet other expenditure. 1563 StylianldesJ. Papaxenophontos & Others v. Republic

(1987)This was done for the Financial year

1. The Budget laid before the House showed at p. 64 Head A
2. Sub-head 102 the basicsalary of the Chairman of the Public Service Commission as £9,160.- and for each of the four members £7,850 -as amounts charged on the Consolidated Fund. Itshowed, also, according to the usual practice, the amount in the Budget of theprevious vear 1986, i.e. £8.539.- and £6,900.- respectively. Inthe Budget Law, 1987 (Law8/87) atρ J02 theamountswere reduced to £8,539.- for the Chairman and £6,900.- for each member. These are indicated intheTable of Expenditure. 5 10 Parag.aph 4 of Article 167 provides that the expenditure to be met from the Consolidated Fund,but not chargedthereonshall be submitted to the House of Representatives for adoption and if adopted shall be put intheBudget inrespect of thatfinancial year Articlp 81 should be read inconjunction with Article 167.4 15 In the preamble to the Budget Law, 1987 we read:«AND WHEREAS a sum not exceeding one hundred and thirty million, three hundred and fifty-seven thousand, three hundred and eleven pounds has to be charged on the Consolidated Fund for the service of the twelve months 20 ending the thirty-first day of December, 1987 as provided by the Constitution or Law. ANDWHEREAS itis necessary to make provision for such expenses of the Government of the Republic for the year ending the 31st day of December, 1987, as are not already 25 lawfully provided for or shall nothereafter be provided for by the Constitution or any Law.» Inthe operative part of Law, Section 2 provides:«
3. Επιπροσθέτως των ποσών άτινα προύπολογίσθησαν ήδη νομίμως διά την χρήσιν της 30 Δημοκρατίας ήάτινα μετάταύτα θα προϋπολογιοθούν νομίμως διά την χρήσιν ταύτην και άτινα βαρύνουν το Πάνιον Ταμείον της Δημοκρατίας, εγκρίνεται ό π ω ς πλημωθη εκ του Παγίου Ταμείου της Δημοκρατίας και χρήσιμο ποιηθή διά την χρήσιν του έτους του λήγοντος 35 την 31ην Δεκεμβρίου, 1987 ποσόν μη υπερβαίνον τα τριακόσια και δύο εκατομμύρια, οκτακοσίας είκοσι χιλιάδας, επτακοσίας και εξήκοντα οκτώ λίρας π ρ ο ς 1564 3C.L.R. Papaxenoptionto$ &Othersv. Republic Stylianldes J. κάλυψιν των δαπανών της Κυβερνήσεως Δημοκρατίας διάτην ττερίοδονταύτην.» της («
4. In addition to the amounts which have been already legally estimated for use by the Republic or which thereafter 5 will be legally estimated for such use and which are charged on theconsolidated fund of the Republic, thepayment outof the consolidated fund for the use of the year ending on 31.12.87 for covering theexpenses of theGovernmentof the Republic during such period of an amount not exceeding 10 three hundred and two million eight hundred and twenty thousand seven hundred and sixty eight pounds is hereby approved»). Section 3 provides that the sum granted by Section 2 is appropriated for theservices and purposes expressed intheTable 15 of Expenditure set out mthe FirstSchedule. The only difference between the Budget presented to the House by theMinisterof FinanceandtheBudget Law 8/87 isthe decrease inthebasic salaries ci theChairmanandthemembersof the PublicService Commission andtherespective decrease inthe 20 totalamountof thecharges on the Consolidated Fund. The Budget authorizes the expenditure as no money can be paid out of the Public Revenue without parliamentary authority. Having given the utmost consideration to the matter, I have come tothefollowing conclusions:25 30 35 (a)The term «Law» in section 6 of Law 169/86 does not include theBudget as its context pointsout. If the Budget were the law envisaged by Section 6 of the Public Service Law, the Budget Law No. 8/87 did not determine orlegislate for the purpose of the remunerationof the Chairman and of the members of the P.S.C. whose remuneration isa charge on the Consolidated Fund. (b) A char-je on the Consolidated Fund does not require adoption by theHouseof Representatives; thesanctionofthe House is confined only to expenditure to be met from the Consolidated Fundbutnotcharged thereon. (Article 167.4 of theConstitution.) The simple reduction, therefore, in the schedule of Law 8/87 and theconsequential reduction inthepreamble totheBudget of 1565 StylianldesJ . Papaxenophontos &Othersv.Republic

(1987)thetotalamount ofthe chargeson the Consolidated Fund arenot a legislativeactinthesenseofSection6ofthePublicServiceLaw A specific law may provide for the remuneration of the applicants,ofcourseadecreaseoftheirremuneration {fixedbythe Council of Ministers) might be inconsistent with the pnnciples of Administrative Lawand contrary totheConstitution andtheLaw, but for the purposes of the present recourse Ifeel that Ishould leave thismatter open 5 The importance of thesaidorgan ofthe State and the necessity of preserving its independence, which have been salutary 10 declared bytheConstitution andtheAuthontativedecisionsofthis Courtshould alwaysbeborninmind,and unlessthereisageneral decrease inthe remuneration of other organs of the State,I fail to see how the lawfully and validly fixed remuneration of the members ofthisindependent organ mayvalidlybe decreased 15 In view of the above the subjudice decision iscontrary to the Constitution and the Law The remuneration of the applicants continue to bethe one determined bythe Council ofMinisters,as stated earlier on in thisJudgement Thesubjudicedecision isherebydeclared nullandvoidandof 20 no effect whatsoever under Article 1464{b)of the Constitution Letthere be no order as to costs Subjudice decision annulled No orderasto costs 1566 25