(1987)1986November6 (TRIANTAFYLUDES Ρ MALACHTOS SAWIDES LORIS STYLIANIDES KOURRIS JJ ] THECYPRUSTOURISM ORGANIZATION, Applicant, ν AGNIHADJIDEMETRIOU, Respondent (Revisional Junsdiction Appeal No 665) Constitutional Law — Public Service Commission — Constitution Articles 1245 and 125 1 — Law of necessity— Cyprus Tounsm Organization — Law of necessity justifies thevesting of the Board of the Organization with power to appoint andpromote thepersonnel of the Organization — Sections 5
(3)and8(l)(b)oftheCypnjs Tounsm Organization Law 54/69— Notinconsistent withArt 1245andl25 1of theConstitution — Thedelegation ofthe powers of the Board m virtue of section 5
(6)of the said Law to the Selection Committee — Theinclusion of the Director-General insuch Committee — Neither the delegation nor suchinclusion unconstitutional This isan appeal from a judgment ofa Judge of this Court, whereby the promotion of Mana Georghiadou to the post of Senior Assistant Tounst Officer {Grade A) instead of the applicant (respondent in this appeal) was annulled ontheground that sections 5{3) and 8(l)(b) ofthe Cyprus Tounsm Organization Law 54/69 are unconstitutional,as being inconsistent withArt 124 5and 1251ofthe Constitution In accordance with thereasoning ofthe judgment appealed from, though the case law establishes that the tumultuous events which struck Cyprus justified inthename ofnecessity created thereby the settingupin particular areas of the public service ofsubstitute bodies toperform theduties of the Public Service Commission, there was no necessity to invest thesubstitute 2 0 bodies with attnbutes other than those envisaged bythe Constitution for the members of the Public Service Commission, since Art 124 5 of the Constitution provides that suchmembers cannot beremoved except «on like grounds and thelike manner asJudges ofthe High Court», whereas the said section 5
(3)provides that the members of the Board of the respondent 2 5 (appellant in this appeal) may be dismissed at any tune by the Council of Ministersandsincethesaidsection8(1Kb)providesthattheMinistermay issue binding directives respecting appointments and promotions, whereas Art 780 5 10 15 3 C.L.R. C.T.O. v. Ha4jlDemetriou 125 makes such matters the sole province of the independent Authonty charged with competence in respect of them, section 5
(3)and 8(l)(b) are repugnant toart 124 5and 125 1ofthe Constitution 5 10 15 20 25 30 35 40 Held,allowingtheappeal
(1)ThisCourtsubscnbestotheviewthat organs entrustedwithmatterssuchasappointmentsandpromotionsofpublic officers should enjoy thegreatestpossible,inthecircumstances, independence from political organs of Government, but there are instances in the Constitution (e g Art 47(0 inconjunction with Art 131) in which the tenure of office of such organs may be terminated by the political organ, which has appointed them
(2)The Public Service Commission envisaged by Art 124 of the Constitution ceased to exist as a result of intercommunal stnfe in 1963 and 19b4 TheCommission thatwassetupinvirtueofthePublicServiceLaw33/ 67cannotexerciseanypowersinrelationtopersonnelofpubliccorporations, such as the appellants in this case In order to fill the vacuum there was enacted the Public Corporations (Regulation of Personnel Matters) Law61/ 70
(3)Theappellant organizationwascreatedbyalawenactedafter thePublic ServiceComission ceased toexistandafter thecreationofthePublicService Commission byLaw33/67,whichwasnotvestedwithpowersrelatingtothe personnelofPublicCorporations Consequently, itwasquitejustifiable, both by the taw of necessity and by common sense, to follow in Law 54/69 the same partem as that followed in Law 61/70, which was found to be constitutional bythe caselawofthisCourt
(4)The Council of Ministersmay,atany time,terminate the term of office of anymemberofappellant'sBoard(section5
(3)(a)ofLaw54/69} Likewise, the members of the PublicService Commission, which was created byLaw 33/67, can be removed from office by the President of the Republic, who appoints them It is not necessary in this case to pronounce on the constitutionality of the aforesaid power of the President, but even assuming that inviewof Art 124 5of the Constitution such powerisunconstitutional, itmustbepointed outthatArt 1245oftheConstitution--annotbetreated as beingapplicabletotheBoardoftheappellant inthesense thatitshould have been provided that the members of such Board can only be removed from office «on the like grounds and in the like manner as a Judge of the High Court» Such tenure ofoffice would beentirelyincompatible withthe nature and functions of the Board of a Public Corporation Once the power of appointment and promotion was vested in the Board and once this was justifiable bythe Lawof Necessity, such powers have tobe exercised by the Board ofthe appellant asconstituted forthepurpose ofbeingthe Boardofa publiccorporation Art 1245oftheConstitution,whichisaspecialprovision specifically applicable to the Public Service Commission envisaged by art 781 C.T.O.v . H«djiDeni«tTioa
(1987)124,does not embody a constitutional principle of such overriding force, whichisapplicable,also,toanyBoardofpubliccorporationvested,invirtue oftheLawofnecessity,withpowerstoappolntjindpromote.
(5)The members of appellant's Board enjoy the requisite degree of independence,becausethepowerofthecouncilofMinisterstodismissthem cannotbeexercisedarbitrarilyorcapriciously.-'' 5
(6)Theprovisionsofsection8(l)(b)ofLaw54/69donotinterferewiththe independence of the-Board of the appellant, because the directions of a general nature therein referred toare not to be understood as directions relatinginanywaytoappointmentsorpromotionsofparticularmembersof 10 thepersonneloftheappellant.
(7)Therewasnothingunconstitutionalinthedelegation,invirtueofsection 5
(6),ofthepowersoftheBoardtotheSelectionCommittee,whichtookthe subJudicedecision or inthe inclusion insuch Committee of the Director- | 5 Generaloftheappellant, Appeal'allowed. Casesreferredto: Frangoulides(No.2)v.TheRepublic
(1966)3C.L.R.676;' Bagdassarianv. E.A.C.
(1968)3C.L.R. 736, 20 Messaritouv.CB.C.
(1972)3C.L.R 100; Theodoridesv. Plousstou
(1976)3C.L.R.319; PresidentoffteRepublicv. Loucos
(1984)3C.L.R. 241; Josephlnv.TheKepub/ic
(1986)3C.L.R. 111;· Charalambousv.TheRepublic
(1986)3C.L.R.557. Appeal. Appeal againstthe judgment of Judge of the Supreme Court of Cyprus (Pikis, J.) given on the 24th September, 1986 (RevisionalJurisdictionCaseNo.295/84)*wherebythedecision of the appellant to promote the interested party to the post of 30 SeniorAssistantTouristOfficerGradeAwasannulled. A. Dikigoropoulos,fortheappellant. •Reportedin
(1986)3C.LJt. 1956. 782 25 3C.L.R. C.T.O.v. HadjlDemetriou A. S Angehdes, for therespondent. N.Charalambous, Senior Counsel of the Republic, on behalfof the Attorney-Generalas amicus cunae Cur adv, vult 5 TRIANTAFYLLIDESP. readthefollowing judgment of theCourt The appellant Cyprus Tourism Organization, which was the respondent in recourse No 295/84 under Article 146 of the Constitution,hasappealed against thefirst instancejudgment ofa Judge of this Court by means of which there was annulled the 10 promotiontothepost ofSeniorAssistant TounstOfficer (GradeA) of Mana Georghiadou The recourse was made ^>y Agni HadjiDemetnou. as applicant, and she is now the respondent in this appeal 15 20 25 30 35 In annulling the said promotion the learned tnal Judge stated the following «Ishall notinthiscaseadvert tothementsof the submission that nobody other than the Public Service Commission could assume powers to make appointments in the public service as defined inArt 122 of theConstitution Becauseour caselaw clearly establishes that the necessity created by the tumultuous events that struck Cyprus soon after its independence justified in the name of the necessity created thereby the setting up inparticular areas of the public service of substitute bodies toperform thedutiesofthePublic Service Commission* The ground being thuscovered by authority, I shall notdebate certain reservations I have with regard tothe inevitability of this approach under the pnnciples evolvedin the case of Ibrahim ν The Republic** . . . . . . In Marhdes and Another ν The Republic (first instance judgment***, I was equally specific pointing out that no decided case supports the contrary view The caselaw as it appears to me, to the extent it illuminates the question, suggests that bodies charged with the competence formerly *See, interaha.loannislosifν CYTA
(1970)3CLR 225 Messantou ν CBC
(1972)3 CLR 100, Theodondes ν Plousstou
(1976)3 CLR 319. KrinosHadJiGeorghiou ν CTO. RecourseNo 217/85 deliveredon 6 686 (notyet published) ** 1964 CLR 195 "•
(1984)3CLR 677 783 Triantafyllides P. C.T.O. v. HadjlDemetHou
(1987)vested in the Public Service Commission under the Constitution should have, notwithstanding changes in their composition, the sameattributesasthebodythey replaced; particularlytheyshouldenjoy thesameindependencevis-avistheExecutive.Thatthisshouldbeso,isreinforced bythe 5 separation envisaged in the Constitution between political andcivilauthority*. Asoften stressed the doctrine of necessity is intended to underpin constitutional order inareas whereitisthreatened with collapse**. Whereas provision for replacement of the 10 Public Service Commission became necessary with the departure of Turkish members of the body, there was no necessityand none hasarisen toinvestthesubstitute bodies with attributes other than those thaj the constitutional legislatorintendedformembersofthebodychargedwiththe 15 duty of manning the public service and no suggestion has been madetothatend. The vital element of independence provided for by the Constitution with regard to members of the Public Service Commission was their security of tenure. Once appointed 20 theyshouldnotbeliabletoberemovedexcept«....onthelike groundsandthelikemannerasJudgesoftheHighCourt»***· The Board of the Cyprus Tourism Organization was 25 entrustedwithpowertomakeappointmentsandpromotions of personnel in the organization, a branch of the public service,inaccordancewiththedefinitionof'publicservice'in Art. 122 of the Constitution. Its members should enjoy securityoftenureinthemannerordainedbytheConstitution. 30 Andtheydidnot.Inrealitytheyheldoffice atthepleasureof the Council.of Ministers. The same lack of independence affected the Selection Committee, assuming it was constitutionally possible for a boJy set up to replace the PublicServiceCommission todelegate itscompetence with 35 regardtopersonnelwhollyorinparttoanotherbody. # ChanlaosFrangoulldesv. TheRepublic
(1969)3C.L.R 676. ** Aloupasv. NationalBankofGreece
(1983)1 CLR.
- *·* Art.
- 784 3 C.L.R. 5 10 15 C.T.O. v. HadjlDemetriou Triantafyllldes P. Theindependence ofthebodywasequallyundermined by the power of the Ministerof Commerce and Industry to issue binding directives respecting, inter alia, appointments and promotions in the organization in direct opposition to the provisions ofArt. 125 making appointments and promotions the sole province of the independent authority charged with :ompetence to make appointments inthepublicservice. Consequently the provisions of s.5
(3)and s. 8(l)(b) of the .'lawareunconstitutional.TheyareinconflictwithArt.124.5of the Constitution and are inconsistent with the provisions of Art. 125.1thatvestsinthebodyresponsible for appointmentsin the public service sole responsibility for the exercise of the competence tothe exclusion ofeverybody else. In the result the sub judice decision is, pursuant to the provisions of Art. 146.4(a), declared in the whole to be null and void.» We should state from the outset that we do subscribe to the viewthat organsentrusted withmatterssuchasappointments and promotionsofpublicofficers shouldenjoy thegreatestpossible,in 20 the circumstances, independence from political organs of Government, in accordance with the principle expounded in Frangoulides(No.2)v. TheRepublic,
(1966)3C.L.R. 676. There are, however, instances in the Constitution where provision is made, apparently exceptionally, that the tenure of 25 office of such organs may be terminated by the Political organ which has appointed them (see, for example, Article 47(0 of the Constitution which isto be read together with Article 131 of the Constitution). The personnel of the appellant Cyprus Tourism Organization 30 would normally have come within the ambit of the definitions of «public officer» and «public service» in Article 122 of the Constitution and, consequently, the powers to appoint and promote in relation tothe personnel of the appellant would have been exercised by the Public Service Commission envisaged by 35 Article 124ofthe Constitution. Aswas explained, however, in, inter alia, Bagdassarianv. The ElectricityAuthority of Cyprus,
(1968)3 CLR. 736, the Public Service Commission envisaged byArticle 124ofthe Constitution ceased to exist as a result of intercommunal strife in 1963 and 785 TriantafyUldes P. C.T.O. v. HadjiDemetriou
(1987)1964 and there was set up, eventually, by means of the Public Service Law, 1967 (Law 33/67), a new Public Service Commission whichisnottheCommissionenvisagedunderArticle 124 of the Constitution, but a differently composed Commission with lessextensive powers. The Commission which was set up under Law 33/67 cannot exercise any powers in relation to personnel of public corporations, such as the appellant in this case, and, therefore, there resulted "avacuum, inthesense thatthe organ which would have exercised the powers of appointment and promotion in 10 relationtothepersonnelofpubliccorporations,namelythePublic ServiceCommission envisaged byArticle 124ofthe Constitution, had ceased to exist and the new Public Service Commission, which wascreated byLaw33/67 and inwhichwerevested some of the powers of the aforesaid Public Service Commission in 15 relation to public officers, was not entrusted with the task to exercise any powers in relation to the personnel of public corporations. In order to fill the said vacuum there was enacted the Public Corporations {Regulation of Personnel Matters) Law, 1970 (Law 20 61/70) by means of which there were vested in the Boards of public corporationsthe powersofappointment andpromotion in relation to their personnel and such.Law was upheld as being constitutional by virtue of the law of necessity (see, inter alia, Massaritou v. The Cyprus Broadcasting Corporation,
(1972)3 25 C.L.R.100). The Bagdassarianand the Messaritoucases were approved by theFullBench ofourSupremeCourtin Theodorides v.Ploussiou,
(1976)3 C.L.R.319, 336,340. The appellant CyprusTourism Organization wasset up forthe 30 firsttimebytheCyprusTourismOrganizationLaw,1969(Law54/ 69),after thePublicServiceCommission envisaged byArticle 124 of the Constitution had ceased to exist and after there had been created by Law 33/67 a Public Service Commission which was notvestedwithanypowersoverpersonnelofpubliccorporations, 35 such asthe appellant. Consequently, it was quite justifiable, both by the law of necessity and by common sense, to follow in Law 54/69 the 786 5 3 C.I..R. C.T.O. v. HadjiDemetriou 1rlanlafyHides P. pattern of the provisions of Law 61/70 which had been found to be constitutional in the Messaritoucase, supra; and, as a result, there was enacted section 5
(2)(e) of Law54/69 empowering the Board oftheappellantto«appoint»itsemployees;andashasbeen 5 held inthe Theodorides case, supra, the notion of «appointment» inprovisionsofthisnature includesthenotion of «promotion». Furthermore, by means of section 5
(6)of Law 54/69 (as amended by Laws48/78 and 16/85) the Board of the appellant was empowered to delegate some of itspowers to Committees 10 consisting of its members and of the Director-General or other officers of the appellant. There was,thus,set upaCommittee ofSelection, bya decision of the Board of the appellant of the 8th July 1983, which was enlargedbytheaddition toitofonefurther member,byadecision 15 of the Board of the 29th July 1983,and such Committee, on the 5thApril1984,promoted MariaGeorghiades,asfromthe 1stApril 1984, to the post of Senior Assistant Tourist Officer (Grade A), after having selected her out of a number of candidates one of whom was the respondent in these proceedings Agni 20 HadjiDemetriou. Theboard oftheappellant is,byvirtueofsection 5
(3)(a)of Law 54/69, appointed by the Council of Ministers for a period not exceeding three years and the Council of Ministers may, at any time,terminate theterm of office of anymember ofsuch Board. 25 Likewise, the members of the Public Service Commission which wascreated byLaw33/67 are appointed bythe President ofthe Republicand canbe removed from office byhim. In view of certain dicta in 77ie President of the Republic v. Louca,
(1984)3 C.L.R. 241,Josephin v. The Republic,
(1986)3 30 C.L.R.' 111 and Charalambous v. The Republic, (case 434/83 decided on the 3rd April 1986 and not reported yet)*we do not propose to pronounce finally in this judgment - and this is not really necessary in the present case - on the issue of the constitutionality of the power of the President of the Republic, 35 under section 4 of Law33/67, toremovefromoffice membersof the PublicService Commission. But even assuming, without so deciding, that there was not sufficient justification, by virtue of the lawof necessity, to depart •Reportedin
(1986)3C.LR. 557 787 Triantafyllldes P. C.T.O. v. HadjiDemetriou
(1987)from theprovisionsofArticle 124
(5)ofthe Constitution asregards the Public Service Commission which wascreated byLaw 33/67 andthat,therefore, itwasunconstitutionaltoprovide,bymeansof section 4 of such Law, that the President of the Republic can remove from office a member of such Commission, whereas itis 5 provided inArticle 124
(5)ofthe Constitution thatsuch a member «shall not be removed from office exceptonthelikegrounds and in the like manner as a Judge of the High Court» - now «of the Supreme Court»-itmustbepointed outthatArticle124
(5),which isaconstitutionalprovisionarguablyapplicableasregardsalsothe 10 PublicService Commission created byLaw33/67, cannot, inour opinion, be treated as being applicable to the Board of the appellant. Because once the powers of appointing and promoting members of the personnel ofthe appellant were notvested inthe 15 Public Service Commission created by Law 33/67, we cannot accept that Article 124
(5)of the Constitution can be treated as being applicable, too, to the Board of the appellant in the sense that it should have been provided that itsmembers can only be removed from office onthelikegroundsandinthelikemanneras 20 a Judge of the High Court. Such a kind of tenure of office would be entirely incompatible withthe nature and functions ofaBoard ofapubliccorporation suchasthe Board oftheappellant;and,in ouropinion, once there werevested inthe Board oftheappellant thepowerstoappoint and promote members of the personnel of 25 the appellant and once thiswasjustifiable by virtue of the lawof necessity, such powers havetobe exercised bythe Board of the appellant as constituted for the purpose of being the Board of a public corporation; indeed, itwould not be correct tohold thatall the Boards of public corporations, which by virtue of legislation 30 enacted on the strength of thelawof necessity cameto be vested with the powers to appoint and promote members of the personnel ofsuchcorporations,wouldhavetoconsistof members whocould onlyberemoved from office onthelikegroundsandin the like manner as a Judge of the High Court, as laid down in 3 5 Article 124
(5)of the Constitution. In our view it cannot he said that Article 124
(5)of the Constitution, whichisaspecialprovisionspecifically applicableto the Public Service Commission envisaged by Article 124 of the Constitution, embodies a constitutional principle of such 40 overridingforce whichisapplicable,also,toany Boardofapublic 788 3 C.L.R. C.T.O. v.HadjiDemetriou Triantafyllldes P. corporation to which there is vested, by virtue of the law of necessity, the power to appoint and promote members of the personnel ofsuch corporation. Wecannot,therefore, agreewiththelearnedtrialJudgethatthe 5 subjudicedecisionisunconstitutional becausethemembersofthe Board of the appellant can be removed from office on grounds andina mannerotherthanthose applicableinrelation toaJudge of the High Court We are, furthermore, of the opinion that the members of the Board of the appellant enjoy the requisite for the 10 dischargeoftheirdutiesindependence becausethoughthetenure of office of anyone ofthem maybe terminated bythe Councilof Ministersatanytime,itisquiteobviousthatsuchtermination isnot to be effected arbitrarily or capriciously and the decisions of the Council of Ministersare under continuous scrutiny by the House 15 of Representatives and publicopinion atlarge. Moreover, wecannotagreethattheprovisionsofsection8
(1)(b) of Law54/69 interfere withthe independence oftheBoard ofthe appellant because, in my opinion, the directions of a general nature referred toinsuchsection 8(l)(b)arenottobe understood 2Q asdirectionsrelatinginanywaytoappointments orpromotionsof particularmembers ofthe personnel of the appellant. Lastly, in the light of all the foregoing, we find nothing unconstitutional in the delegation of the relevant powers of the BoardoftheappellanttotheSelection Committee which effected 25- thesubjudice promotion orinthe inclusion insuchCommitteeof the Director-General of the appellant. On the contrary, the participation in such Committee of the Director-General of the appellant,inourview,resultsinthedemocratization oftheprocess oftheexerciseoftherelevantpowersregardingappointmentsand 30 promotions,inthesensethatthereparticipate insuchprocessnot only members of the Board of the appellant but also its highest executive officer. Inthe result, for the reasons set out in thisjudgment, we have held that thesubjudice decision isnot unconstitutional. ot Appeal allowed. •789