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clr/1987/1987_3_1930.pdf

(1987)1987 November 7 [P1K1S J | INTHEMATTER OFARTICLE 146 OFTHE CONSTITUTION THEMERIDIANTRADING CO LTD, Applicants, υ THEMINISTEROFCOMMERCEAND INDUSTRY, Respondent (CaseNo 452/86) Constitutional Law — Right to property — Constitution, Art 23 — Does not safeguard anght to importgoods intothisCountry Constitutional Law — Right to carry on a trade — Importation of goods — Restrictions — The Imports Regulation Law, section 3 — Order made thereunder makingimportationofgoods subject tolicence—Doesnotaffect freedom toengage inimporttradeassuch,butthecircumstancesofcarrying onsuchtrade 5 ConstitutionalLaw — Equality— Constitution,Art 28 — Importationof goods subject to import regulation — Cntena designed to affordto each importer amenity to import apercentage of theproducts he intended toimport — In 1 0 thiscasethatwasnotanunreasonablewayofbalancingconflictinginterests Imports— Theimports RegulationLaw,asamended byLaw 7/67—Order under section 3— Competency fortheissueof licences Imports— TheImportsRegulationLaw,asamended byLaw7/67—Section 3 — Order thereunder relating to gloves — Whether the «quo/a» should be 1 5 distributedbetween traditionalimporters—No warrantforsuchalimitation The importation of gloves inCyprusisinvirtueof an order ma'ein 1983 under s 3 of thesaid law subject tolicenceand control by theMinisterof Commerce andIndustry On 73 86the Minister determined vanousapplications, whichwere then pending,fortheimportationofgloves Ineachcaseheissuedapermitforpart ofthequantity applied for The applicant feeling aggneved filed the present recourse, seekingthe annulmentofthedecisiononthe followinggrounds,namelythatitwastaken 1930 20 3 3 C.L.R. MeridianTrading v. Mln.of Commerce by an incompetent oigan.ι e by anofficialof theMinistry andnotthe Minister himself, that the order of 1983 is ultra vires section3 of the said law. that the quota of the gloves to be importedshould have been confined to traditional importers and that it iscontrary toArticles 23 25 and 28 of the Constitution 10 Held, dismissing the recourse
(1)Inevitably applications are processed through the appropnate channels of tne Ministry before final determination that cannot but be presumed in the absence of an indication tothe contrary. to be thatof the Minister no doubtilluminated by thestudy and researches of the personnel of his department In this case the contention asto the alleged incompetency fails 2)ThisCourt fails to see why the order of 1983 is ultra viresthe law tO 3) The contention as to the quota is baseless There is no warrant for such limitation either in the law or the order, not to mention the likelihood of incompatibility of any such limitation with the provisions of Art 28 of the Constitution 4) Article 23 of theConstitution is not applicable tothe factsof this case It does not safeguard the nght to import goods into the country 20 25 5) The alleged gnevance does not affect applicants freedom to engage in the import trade as such but the circumstances of carrying on that trade a separate and distinct question It follows that the sub judice decision is not inconsistent with Art 25 1 6)The Ministry adopted certaincntena designedtoaffordtoeach importer amenity to import apercentage oftheproductshe intendedtoimport tntothe country It was not an unreasonable way ofbalancing the conflictinginterests of the importers Recoursedismissed No order as to costs Casesreferred to Police ν Hondrou and Another.3 R S C C 82. 30 Impaiex Agencies Ltd ν The Republic
(1970)3 C L R 361. HoussemMan and Others ν TheRepublic, 3 R S C C. 39 Recourse. 35 Recourse against the decision of the respondent whereby applicants' application to import 1500 pairs of rubber gloves was approved for only 420 pairs of gloves 1931 MeridianTrading v.Mln.of Commerce
(1987)A. Scordis, forthe applicants. St. Ioannides (Mrs.), for the respondent. Cur.adv. vult. PIKISJ. readthe followingjudgment. Inexercise ofthe powers vested in him by s.3 ofthe Imports Regulation Law (asamended 5 by s. 2 of Law 7/67), the Minister of Commerce and Industry promulgated in 1983an order* making the importation of gloves subject to import regulation. In 1975** an absolute prohibition was imposed on the importation of gloves for the protection of local industry- The prohibition was relaxed from 1979 onwards, 10 culminating intheorderof 1983makingtheimportation ofgloves subject to licence and control by the Minister of Commerce and Industry. In March 1986 the applicants, a company in the import trade, applied for a licence toimport 1500pairsof rubber gloves.Apart 15 from the applicants, other importers too applied for a licence to importsimilararticles.On7th May, 1986,theMinisterdetermined applicants' request and other applications for the importation of gloves. He approved the pursuers' application only in part authorizing the applicants to import 420 pairs of gloves. By the 20 sametoken hejudged,aswe maygatherfrom thematerial before us,other applications forthe importation of gloves,allowing only the importation ofa portion ofthe quantity applied for. The decision of the Ministry was communicated to the applicants by an official of that department on behalf of the 25 Director-General. The present proceedings are directed against the validity of that decision challenged as unconstitutional and otherwise bad for the variety of reasons. Itisexpedient to begin with the examination of the latter grounds first and then turn to questions of constitutionality. The first ground by reference to 30 which the decision ischallenged isthat itemanated from and was issuedbyanincompetentorgan.Theargumentisthatwhereasthe power to determine an application for an import licence is entrusted to the Minister, the decision was taken by an official of theMinistryotherthanhimselfandonthataccountitisbadforlack 35 •RAA7/83 · · «AA102^
  1. 1932 3 C.L.R. MeridianTradingv.Mln.ofCommerce PUdsJ. of competency on the part of the organ takingthe decision. The submission is, with respect, based on a fallacy. No doubt the Minister is the custodian of the powers vested by law in the Ministry of Commerce and Industry and he assumes ultimate 5 responsibility for them. Inevitably applications are processed through the appropriate channels of the Ministry before final determination that cannot but bepresumed, inthe absence ofan indication to the contrary, to be that of the Minister; no doubt illuminated by the study and researches of the personnel of his 10 department. The next ground upon which attention will be focussed is the submission that the 1983 order isultra vires the law. Iabsolutely fail to see why. The relevant section of the law. notably s.3, expressly empowers the Minister of Commerce and Industry to 15 regulate the importation of any article by order published in the official Gazette whenever he deemsitappropriate and conducive tothe achievement of one or more of the purposes named inthe law. The order here under consideration was made in express 20 exercise of that power. It has long been settled that the Constitution of Cyprus raises no obstacle to the enactment of subsidiarylegislation*;providedalwaysthatthosetowhompower isentrustedtoenactsecondary legislationkeepwithinthe confines of the law and heed the limitations imposed by the parent 25 legislation;aconstraintdulyobservedbytheMinisterinthiscase. The order of 1983 made intermsthe Ministerthe custodian of the exercise of the power inthe interest ofthe purposes specified in the order revolving as they do round the exigencies of the Cypruseconomy. ItwasinthepoweroftheMinistertorestrictthe 30 importation ofglovesand nothingplaced before mesuggests that the power was in any way abused or exceeded. The suggestion that the quota, if Ican use that expression, of the gloves to be imported should be confined to traditional importers of those articles,isbaseless.Thereisnowarrantforsuchlimitationeitherin 35 the law or the order, not to mention the likelihood of imcompatibility of any such limitation with the provisions of Art. 28 of the Constitution safeguarding equality before the Administration. * Police v.Hondrou & Another. 3RSC.C
  2. 1933 PUdaJ. Meridian Trading v.Mln.of Commerce (198?) Furthermore, the contention that the decision isbad forlackof due reasoning isagain groundless. Itisevident from the material before me that the decision was taken in the interest of local manufacturers ofglovesinthe exercise ofthediscretionary power vested in the Minister to define the needs of the economy and 5 determine measures for its protection through regulation of the import trade. Lastly,thelawandtheordermadethereunderarechallenged as bad for breach of the provisions of Articles 23.25 and 28 of the Constitution and sequentially thereon the sub judice decision as 10 founded on the provisions of the impugned legislation. I truly fail toseehowArt.23comesintoplayatallinthecircumstancesofthis case. The sub judice decision does not limit the right of the applicants to own property. Art. 23 does not safeguard arightto import goods into the country, whereas para. 3 of Art.23 allows 15 limitations necessary, inter alia, for the promotion of public benefit. Ishall concern myself no further with this aspect of the case. Art. 25 safeguards the right of every person to practice any profession or carry on any occupation, trade orbusiness.Neither 20 theImportRegulationLawnortheordermadethereupon purrort to limit the freedom of the applicants to establish themselves as traders. In fact, they trade without hindrance. The alleged grievance does not,tomycomprehension, affect theirfreedom to engage in the import trade as such but the circumstances of 25 carrying on that trade, a separate and distinct question. This appreciation of the implications of s.3 of the Imports Regulation Lawhasbeen judiciallyacknowledged andsanctioned in Impalex Agencies Ltd. v.Republic *. Moreover, inanearliercase, namely, Houssein Man and 4 Others and The Republic (Minister of 30 Commerce &Industry**, theSupreme ConstitutionalCourt took the view that regulation of the import trade is in any event a permissiblecauseforlimitationofthefreedom safeguarded byArt. 25.
  3. Another ground upon which the validity of the decision is 35 contested affects the distribution of the gloves that were to be imported among the several importers. As explained in the address of counsel for the respondents, the Ministry adopted •
(1970)3C.L.H
  1. "3R.S.C.C
  2. 1934 3C.L.R. MeridianTradingv.Mln.ofCommerce PtUsJ. certain criteria designed to afford to each importer amenity to importapercentageoftheproductsheintended toimportintothe country. It was not an unreasonable way of balancing the conflicting interest of the importers and Ifind no justification for 5 interfering with the decision on that ground either. Intheresulttherecourseisdismissed.Thesubjudicedecisionis confirmed pursuant toArt. 146.4(a)of the Constitution. Recoursedismissed. No order astocosts. 1935

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