(1987)1987 December10 (PIKI5.J.] INTHEMATTEROFARTICLE 146OFTHE CONSTITUTION ANDREASHJIVASSILIOU, Applicant, v. THECYPRUSORGANISATIONOFATHLETICS, Respondents. (CaseNo. 22/87). : PublicCorporation—TheCyprusOrganisationof Athletics—Appointments —Appointment topostofDirector-GeneraloftheOrganisation—Scheme of Service made bytheRespondents andapproved bytheCouncilofMinisters, pursuant toReg. 5
(1)of the CyprusOrganisation ofAthletics(Structureand TermsofService)Regulation, 1975—TheCyprusOrganisation ofAthletics Law, 41/69, section 19 —Reg.5
(1)does not constituteasub-delegationas the legislativeauthority delegated by section 19 to the CouncilofMinisters and exercisableinthe mannerprovided bysub-section 3 ofsection 19, buta regulation of a subject of executive power —Itfollows that the scheme in question is not ultra vires the law — Reg. 5
(1)encompasses the post of Director-Generalaswell. 5 10 PublicCorporations— TheCyprus Organisation ofAthletics—Appointments — Qualifications—Dueinquiry— Lack of. NaturalJustice —Bias—Collectiveorgans—Testapplicable. Public Corporations —Appointments — Personalknowledge of the abilities of candidatesbymembers ofappointingbody —Principlesapplicable. Executive act — Approval by Minister of Education pursuant to s. 14
(1)of the Cyprus Organization of Athletics Law 41/69 of the decision of the Organizationto appoint the interestparty to thepost of Director -General —Theapprovalbestowsretrospectivelyexecutory charactertosuchdecision —Therefore, therecourse wasrightiydirectedagainstsuch decision. On 4th November, 1986, the Ag. Director-General of the respondent Organisation moved it to fill the vacant post of Director-General. An advertisement inthe dailypresselicitedonly twoapplications,onefrom the 2142 ^5 20 3 C.L.R. j- 10 HjlVasslllou v. CyprusAthletics Organ. Ag Director-General interested partyandonefrom theapplicant TheBoard of therespondentsconsidered the applicationsfor appointmenton 2 12 86 Theydecided tocallthecandidatestoaninterview asanaidtothe assessment of their capabilities The two candidates were invited to an interview on 16 12 86 The minutes of the respondentsindicatethat the actingDirectorGeneral took partat the meeting of 2 12 86 andparticipatedin thedecision taken Following the interviewing of the candidates on 1612 86 the respondents decided that the interested party was the best of the two candidates, and chose him for the post of Director-General of the Organization Hence thisrecourse Held,annullingthesubjudicedecision
(1)Thisrecourse isdirectedagainst the aforesaid decision of 16 12 86, whichwas laterapproved bytheMinister of Educationpursuanttosection 14
(1)of Law41/69 Theactof theapproval isa process entailingthebestowal retroactively of an executory characteron the decision of those trusted with power to appoint, Κ ΟA Hence, the objections tothejusticiability of therecourse cannotbe sustained 20 25 30 35
(2)The scheme of service for the sub judice post was made by the respondent Organisation with the approval of the Council of Ministers. pursuanttoReg 3
(1)of theaforesaid Regulations Applicant complainedthat the scheme is ultra vires the law in that it was not enacted in the manner provided by s 19
(3)of the Law However Reg 5
(1)was enacted in such a manner This regulation did notentail sub-delegation of legislative authonty butregulation ofasubject of executive power Schemesof serviceconstitute, ascanbe deducedfrom thedecisions of theSupremeConstitutionalCourt in Theodoros G Papapetrouν Republic,2 R S C C 61 and Ishmν Republic, 2 RS C C 16 aspects of executive power, as such they are par excellence amenable to regulation by the executive branch of public authonty Of course, the power is usually exercised by public instrumentinthe interestof certainty of the administrative process, when this occurs the scheme takes legislative form and mustconform tostatutorynorms The submission that the power conferred by Reg 5 is confined to the introduction of schemes of service for personnel other than the DirectorGeneral cannotbe upheld, because the plain provisions of Reg 5 leave no doubt that the power conferred thereby is all embracive and encompasses every memberof thestaff of theAuthonty,including theDirector-General
(3)To safeguard the independence and impartiality of collective organs, rules have been evolved designed to ensure that standards are observed compatible withindependentexerciseof discretionary powers 4Q Ifconfidence o'thepublicintheAdministrationisapttobe impairedowing tothepeculiarrelationshipof anyoneofthemembersof acollective organ to the subject matterof the decision, thedecision isdeemed tobe fraught with bias Thetestis notthatof actualbiasbut of theappearanceof bias 2143 HjiVassUioa v.Cyprus Athletics Organ.
(1987)In this case, .ne participation of the Acting Director-General in the preparatory stages of the administrative act defied the independence of the collective organsand exposed itsdeliberationstothecharge ofbias.
(4)The inescapable inference deriving from theminutesof the decision is that respondents treated the eligibility of the interested party under the schemeofservice,a foregone conclusion. 5 Clause 2of the scheme of service reads:Atleastsixyearsexperience ina responsible position; out of which at least three years shall entail administrative and/orsupervisory experience. Inthelightofthe relevant materialbefore theCommission,concerningthe career of the interested party is is unclear whether he had the three-year expenence,envisaged bytheschemeofservicederivingfrom theexerciseof administrative orsupervisory experience. 10 . Subjudicedecisionannulled. No orderastocosts. 1c Casesreferredto: Vassiliou v.Republic
(1982)3C.L.R.220; Protoyeros v.Republic
(1987)3C.L R.2025, Papapetrou v.Republic, 2 R.S.C.C. 61; Ishinv.Republic, 2R.S.C.C. 16; 20 Kallourisv. TheRepublic, 1964C.L R.313; Anisminic v. ForeignCompensation Commission
(1969)1 AllE.R.208. R. v.Sevenoaks [1975]1AllE.R.220; R. v.Edmundsbury BC [1985]3AllE.R.234; Republic v.Pericleous
(1984)3CL.R.577; 2 5 Angelidou and Othersv. TheRepublic
(1982)3C.L.R.
- Recourse. Recourseagainstthedecisionoftherespondenttopromotethe interested party to the post of Director-General of the Cyprus Organisation of Athletics in preference and instead of the applicant. N.Papaefctathiou, fortheappliant. M.Chrtstofides, fortherespondent. Cur. adv. vult. " (See, Creek AdministrativeLaw by Kyriacopouhs, GeneralPart. 4th Ed.. Tome B, pages 101-103). 2144 30 3 C.L.R. HjlVassillonv.CyprasAthletic* Organ. PIKISJ.readthefollowingjudgment.InAugust1986thepost of Director-General of the Cyprus Organisation of Athletics {hereafter referred toasK.O.A.-theacronymofthenameofthe Organisation in Greek), became vacant. Charalambos 5 Koukoularides, headmaster of secondary education, a qualified instructor of Physical training, was appointed Acting DirectorGeneraloftheOrganisation.Itdoesnotappearfromthematerial before theCourtwhytherespondentsfailed oromittedtofillthe postandchoseinsteadthestopgapprocedureofmakinganacting 10 appointment. Hadtheydonesotherewouldhavebeennoroom for the charges of bias, made by the applicant founded on the participationofMr.Koukoularidesinthedecisionmakingprocess. Bethatasitmayweshallproceedtorecounttheeventsthatledto thefillingofthepostbytheappointmentofMr.Koukoularides,the 15 interestedpartyintheseproceedings. On4thNovember, 1986,theAg.Director-General movedthe respondents to fill the vacant post of Director-General - a submission that was duly accepted - whereupon the post was advertised.Anadvertisement inthedailypresselicitedonlytwo 20 applications, one from the interested party and one from Mr. Hadjivassiliou who had served on an acting basis as DirectorGeneral oftheOrganisation foraperiod ofmorethantwoyears between 1982 and
- The Board of the respondents considered the applications for appointment on 2/12/
- They 25 decided tocall the candidates to an interview, as an aid to the assessment oftheircapabilities.Thetwocandidateswereinvited to an interview on 16/12/
- The minutes of the respondents indicatethattheActingDirector-Generaltookpartatthemeeting of2/12/86andparticipated inthedecisiontaken. Followingthe 30 interviewing of the candidates oh 16/12/86 the respondents decided that the Interested party was the best of the two candidates;andchosehimforthepostofDirector-Generalofthe Organisation. It is apparent from the reasons given for their decisionthatthesuccessful performance ofMr.Koukoularidesat 35 the interview wasone of the principal reasons for hischoicein preference toMr.Hadjivassiliou. Thedecision wassubmitted to theMinisterofEducationforapproval,pursuanttotheprovisions of s. 14
(1)of the CyprusOrganisation ofAthletics Law41/69*. Approval was given on 20/12/86 roundirtg the process of 40 appointment of the interested party to the post of DirectorGeneral. '(AmendedbyLaws22/72,2/73.51/77, 79/80and87/85) 2145 Pikl· J. HjlVassUlou v. Cyprus Athletics Organ.
(1987)The present proceedings were instituted on 15/1/87 and are directed against the decision of the respondents of 16/12/86. Respondents objected tothejusticiabilityofthe subject matterof the recourse arguing that itwasdirected against anon executory act. They contended that the decision of 16/12/86 was not 5 executory and on that account inamenable to judicial review under Article 146.1 ofthe Constitution. Only thedecision ofthe Minister had the attributes of an executory act,a decision no longer open to review because of the effluxion of the 75-day period stipulated bypara. 3ofArticle 146.Applicant refuted the 10 validity ofthe above submission andargued that the approval of the Minister could not be separated from the decision ofthe respondentsof16/12/86.Ministerialapproval merelyfledged the decisionofK.O.A.intoan executoryone.Theconfirmation ofthe Minister simply added the missing link to the genesis of the 15 executory act to appoint the interested party to the post.The submission madeonbehalf oftheapplicantfindssupportinGreek jurisprudence* which establishes that approval bya body other than that trusted by statute with decision making, is a complementary act,providing theconfirmation required bythe 20 Statute. Approval furnishes the external support required forthe validation of the decision. Iam wholly in agreement with the above understanding of the nature of the act of approval, a process entailing the bestowal retroactively of an executory character onthe decision ofthose trusted with power to appoint, 25 K.O.A. Hence, theobjections tothejusticiability ofthe recourse cannot besustained. Weshall proceed toexamine themerits of the complaints allegedly invalidating the appointment of the interested party. Marshalling as comprehensively as I can the grounds upon 30 which the decision is challenged, they can be summarised as follows:(A) Invalidity of the scheme of service under which the applications were invited and the appointment was made.In thesubmission ofapplicanttheschemeofserviceisultra-vires 35 theprovisionsofs.8
(4)and s. 19
(3)ofthe law. (B)Lack ofthe attributesofimpartialityofthe Board ofthe respondents occasioned bythe participation ofthe DirectorGeneralatitsmeetings of4/11/86 and 2/12/
- *See.CreekAdministrativeLawbyKyriacopoulos.CeneralPart4thEd.ToTneB.pp. 101-
- 2146 3 C.L.R. 5 10 15 HJIVassUlou v. CyprusAthletic·Organ. Plkta J. (C) Inadequacy of the inquiry into the qualifications of the interested party. On examination of the minutes of the respondents itemerges thattheypresumedthattheinterested party had the requisite qualifications for appointment; no reference is made to any inquiry to ascertain whether he possessed the qualifications required by the scheme of service. Theomission isnotfatal tothedecision provided the assumption made isindisputably supportedby thematerialin thefileof thecase*.According totheapplicantthematerialin thefilerelevant tothequalifications ofMr.Koukoularidesdid nothave thateffect. Inparticular,thematerialdidnot establish that he possessed the qualifications envisaged by para, (b) and para, (d)of theschemeof service. Abig question mark,it was argued, hangs over the length of administrative and supervision experience of theinterested party. (D) The reasoning supporting the choice of the interest party is in part unsound; the part based on personal knowledge of the members of the capabilities of the candidates. 20 (E)Abuse of power arising from alleged disregard of the superior meritsof theapplicant. Below, we shall deal with the contentious issues in the order elicited above:- (i) Validityof the scheme of service: Section 8
(4)of the law 25 provides thatthestructureof theOrganisation,termsofservice of personnel and mattersassociated therewith, as well as the Code for thediscipline of personnel,are subject toregulation.Power to regulate these mattersisassigned totheCouncilof Ministersby s. 19 of the law subject toapproval by theHouseof Representatives 30 in the manner envisaged by subsection 3. Inexercise of the rule makingpower entrustedtothemtheCouncilof Ministersenacted the Cyprus Organisation of Athletics (Structure and Terms of Service) Regulations of 1975 promulgated, after approval by the House,on28/2/75**. Inaccordancewith Reg.5
(1)thedutiesand 35 responsibilities of thepersonnelof theOrganisation,aswellasthe qualifications necessary for appointment, fall to be defined by schemesof service madeby K.O.A.andapproved by theCouncil *(See.interalia.Republicν Vasstliou
(1982)3C.L.R.220and. Protoyerosv. Republic
(1987)3 C.L· R.2025 " (RegulatoryAdministrativeAct 42/75 - No.42). 2147 Pikls J . HJlVassUlou v. Cyprus Athletics O r g a n .
(1987)ofMinisters. Cou.iS^I tortheapplicant argued that the scheme-of service made under the provisions of this Regulation were ultraviresthe lawinthattheywerenotenacted inthemannerlaiddown in s. 19
(3). It is axiomatic in taw that a body vested with competence to make subsidiary legislation cannot sub-delegate 5 the exercise of the power. The lawmaking power of the delegate mustderivedirectlyfrom theenablingenactmentandbe confined within the four comers of the authorisation. Bydelegating power totheboard oftherespondents,beitsubject totheapprovalofthe Council ofMinisters,to make the scheme ofservice, thedelegate i o body exceeded, itwasargued, the termsof their mandate bysubdelegating authority to another body to regulate aspects of it.I cannot sustain the submission. Because, the assignment to the respondents of responsibility to make the schemes of service did not entail sub-delegation oflegislative authority but regulation of 15 a subject of executive power. Schemes of service constitute, as can bededuced from thedecisionsoftheSupreme Constitutional Court in Theodoros G. Papapetrou v. Republic* and Ishin v. Republic**, aspects of executive power; as such they are par excellence amenable to regulation by the executive branch of 20 public authority. Of course, the power is usually exercised by public instrument in the interest of certainty of the administrative process; when this occurs the schemes take legislative form and must conform tostatutory norms. Anotherobjection taken tothevalidityoftheschemesofservice 25 isthe following:Thepower conferred byReg.5 isconfined tothe introduction of schemes of service for personnel other than the Director-General. Thesubmission wasfounded on the distinction made between the position of the Director-General and other employees in s.2, the definition section of the law, and the 30 absence of any reference to the Director-General in Reg.
- I cannot uphold this submission either for the plain provisions of Reg. 5 leave no doubt that the power conferred thereby is all embracive and encompasses every member of the staff of the Authority, includingthe Director-General. 35 (ii)Participation ofMr.Koukoularides atthepreparatory stages of the decision-making process: The attributes of impartiality of the Administration are fundamental to the efficacy of the *(2R.s.c.cm "(2 R.S.C.C. 16). 2148 3 C.L.R. 5 10 15 HJiVassillou v.CyprusAthletics Organ. Pikls J. administrative prcte.ssand thesustenance ofpublicconfidence in its mission. Tosafeguard theindependence and impartialityof collectiveorgans,ruleshavebeen evolveddesignedtoensurethat standards are observed compatible with independent exerciseof discretionary powers. Deeds compromising the necessary impartiality in the eyes of right thinking members of the community make decisions taken assailable for maladministration. Sound administration is grounded on the independence ofjudgment ofcollective organs. Greek jurisprudence has evolved the following test to determine the impartialityofcollective orgnans*. Istherelationship ofanyone ofitsmembers tothesubject raised fordecision such astocreate doubts about the mora1 freedom of the member or members to bring independent judgment tobear onthe subject under review?The measure turns again onthereaction ofright-thinkingmembers ofthe community. If confidence of thepublic in theAdministration isapttobe impaired owing to the peculiar relationship of anyone ofthe 20 members of a collective organ to the subject matter of the decision, thedecision isdeemed tobefraught with bias.The test is notthat of actual bias butof the appearance of bias. These principles were adopted and found expression in Georghios Michael KallourisandTheRepublic**. Triantafyllides. J., ashe 25 then was, indicated that theprinicple atissue isanaspect ofthe rules of natural justice aimed to ensure sound standards of administration. In England too, where a body of administrative lawisof late systematically developed***, kindred ruleshave been evolvedto 30 underpin the independence of administrative bodies. The decision of Glideweli, J., inR. v.Sevenoaks**** isof especial interestbecause itsuggeststhatthecriterion byreference towhich the impartiality ofpublicbodiesistested isnotthejudicialonefor bias, with the focus on the reactions ofthe reasonable man, buta 35 moreformal oneassociatedwiththequalityoftheactsofmembers •(See,Conclusionsderivedhorn theGreekCouncilofState 1929-59,p.111). ·*1964C.L.R.
- ***(EspeciallyafterthedecisioninAnisminlcv.ForeignCompensationCommission
(1969)1 AllE.R.208;see, also, Vassiliouv. Republic
(1982)3C.L.R. 220). "** 11975)3A1IE.R.226-see, also,R.v. EdmundsbuiyBC{1985}3AllER.234. 2149 Ftth»J. HjlVaasffio»v.Cypnu Athletic· Organ.
(1987)of thebody before thedecisionistaken.Iftherelationshipofany membertothesubject matterissuchastoobjectively preventhim from taking part in the decision-making process, participation in the decision entails animpropriety inconsistent with theproper exercise ofthepower. ** Whichever test we apply inthis case, we arrive atthe same conclusion, namely thattheparticipationoftheActingDirectory General inthepreparatorystagesoftheadministrative act defied the independence of the collective organs and exposed its deliberationstothechargeofbias.Right-thinkingmembersofthe \Q community,duly acquaintedwith thehistory ofthe appointment would, to my comprehension doubt the independence of judgmentofthedecision-makingbody.TheAg.Director-General, a person with a vital personal interest inthe decision, wasfirst allowed tomove themachinery forfillingthe vacant post and 15 more significantly still tookpart inthedecision,choosing oneof themeansoftestingthecandidates. Adequacyoftheinquiryintothequalificationsof theinterested party:Theinescapable inference deriving from theminutesofthe decision isthatrespondentstreatedtheeligibilityoftheinterested 20 party under the scheme ofservice, a foregone conclusion. The applicant doubted the validity of his assumption or, more accurately,suggestedthroughhiscounsel thatthematerialin the file ofthecasedidnotnecessarily establish thattheinterestedparty had the requisite administrative experience orexperience inthe 25 supervision of personnel, required by clauses 2 and4 ofthe scheme of service. Clause 2 of.the scheme ofservice requires (Appendix 1tothe Opposition):«Εξαετής τουλάχιστο πείρα σευπεύθυνηθέση, από την οποία τριετής τουλάχιστο διοικητική ή/και 30 εποπτικήπείρα.» «Atleastsix years experience inaresponsible position; out of whichatleast three-yearshallentailadministrativeand/or supervisory experience.» Thecase fortheapplicantisthatthematerialinthefiledoesnot 35 provethatthe interestedpartyhad theadministrative experience orexperienceInsupervision, envisaged bytheschemeof service. Inthe contextofthe scheme,administrativeexperienceconnotes experience acquired from the exercise of administrative duties deriving from themanagementofadepartmentorsectionofan 40 2150 3C.L.R. KJlVassilioav. CyprusAthleticsOrgan. PUdsJ. authorityororganisation.Thealternative,supervisory experience, connotes experience gained from thesupervisoryofpersonnel or a subordinate department. The material before the respondents did not, in the submission of applicant, satisfy this requirement 5 either. Furthermore, it was suggested that the material was also inconclusive with regardtothequalifications required byclause 4 ofthescheme ofservice,requiringmanagerial,organisational and administrativeability.Unlikeclause2,clause4focussed onability, not experience. 10 Examination ofthematerialbefore therespondentsrevealsthat interested party served as a teacher of physical training upto the year 1977. Discharge of those duties did not of itself suggest acquisition of administrative or supervisory experience in the sense of clause 2.Thereafter, the interested party was promoted 15 and served for a period between 1977 and 30/4/79 as Assistant Headmaster of a secondary school. The exercise of these duties does ordinarily entail the exercise of administrative duties and supervision of personnel, and a safe assumption could be made that corresponding experience was gained during that interlude. 20 The precise length of service in that capacity is'unspecified. No inquiry was made to ascertain itsduration. No assumption could havebeen made about thelength oftheinterested party'sservice inthat position. On 7/4/79 the interested party was appointed adviser to the 25 President of the Republic on security matters (securityadviser);a presidential appointment made by instrument. The duties of securityadviserarenowhere identified ordetailed.Inthe absence ofsuch information no one could presume that they involved the exercise of administrative duties or the supervision of personnel. 30 The position of an adviser does not ordinarily entail any duties other than rendering advice. Evidently, the interested party had not severed his links with the educational service for while still engaged as adviser he was, in the year 1984, promoted to headmaster secondary education. Nonetheless he continued 35 carrying on the duties of adviser until 1986. In March 1986, following the termination of his appointment as adviser to the President, he assumed duties of Headmaster secondary school that he carried out until hisappointment asAg. Director-General ofK.O.A.attheend ofAugust.Undoubtedly,duringtheperiodof 40 his service in the above two capacities, he did exercise administrative dutiesand supervised personnel. 2151 PfUsJ. HiWassfflon *.CypresAthleticsOrgan.
(1987)Inthe lighto* the above, itisunclear whether hehad the threeyear experience, envisaged by the scheme of service, deriving from the exercise of administrative or supervisory duties*. The testimonials given the interested party by the President of the Republic through the DirectorofhisOffice, didnotbridgethegap 5 in that they did not establish that he carried out administrative duties or that he supervised personnel during his service as security adviser to the President. They did satisfy, however, the requirements of clause 4 of the scheme of service because they spoke of his initiative, devotion, hard work, administrative and 10 organisational abilities. In the light of the above, the absence of any inquiry by the respondents into the qualifications of the interested party with a view to ascertaining his eligibility under clause 2, cannot be bridged bythematerial inthefile.Aninquiryisnecessaryandthey 15 mustaddress themselves tothatquestion when they are seizedof the matter anew. KNOWLEDGEOFTHEABILITIESOFTHECANDIDATESBY MEMBERS OF K.O.A. — Personal knowledge: The principle appears to be that personal knowledge of the abilities of a 20 ^anoidatebymembersoftheappointingbodymayberelied upon as an aidto the assessment of the qualitiesof the candidates. But itshould not be relied upon in substitution of the objective data bearing on their worth. This proposition finds support in the decision of Triantafyllides, P., in Angelidou and Others v. 25 Republic**. Nonetheless, a note of caution must be added. Membersofacollectiveorganmustneverpersonalisethe exercise of their functions. Personal knowledge mustasa rule derive from knowledgeofthewaythecandidatecarriedouthisofficial duties. I need not probe this aspect of the case further in view of the 30 conclusions already reached. For similar reasons, Ishall refrain from giving consideration tosubmissions relevant tothemeritsof the candidates. *Thematerialdate fordeterminingwhetheracandidatepossesses therequisitequalifications isthetimetbnitmdforthesubmissionofapplications—see. Republicv.Perlcleous
(1984)3 C.LH.
- m '(19e2)3C.L.R.
- 2152 3C.L.R. HjiVassUiouv. CyprusAthleticsOrgan. FlktsJ. Inthe resultthesubjudice decision isannulled.Itisdeclared to be wh_iiyv^id pursuanttotheprovisionsofarticle 146.4(b)ofthe Constitution. Letthere be no orderastocosts. Sub judice decision annulled.No order astocosts. 2153