(1987)1987 July23 [TRIANTAFYLUDES Ρ. A LOIZOU.MALACHTOS.SAWIDES. LOR1S STYLIANIDES,KOURRIS, JJ ] THEREPUBLICOFCYPRUS,THROUGH THE PUBLICSERVICECOMMISSION, Appellant, ν KYRIACOS KYR1ACOU, Respondent (RevisionalJurisdictionAppeal No 733) Revisional}unsdiction appeal — Quorum ofSupreme Court ~~More than half the number of Judges ofthe Supreme Court holding officeatany given time Revisional junsdiction appeal —AJudge ofthis Court from whosejudgment the appeal is made is legally incapacitated from participating in the heanng of theappeal — /(cannot beotherwise merely becausea constitutional issue has tobe pronounced 5 The question raised inthe course ofthe heanng ofthis appeal iswhether, when the Court isdealing with an issue ofconstitutionality,allthe Judgesof the Court includingtheJudge, fromwhose judgment the appeal was made, should be invited to sit Held,
(1)Thequorum ofthe Supreme Court for the purposeofheannga revisional junsdictionappeal under theproviso tosection 11
(2)ofLaw33/64 is more than half the number of the Judgesofthe Court holdingofficeat any given time {2) Moreover, accordingto the case lawaJudgeofthisCourt fromwhose 1 5 judgment theappeal ismade,islegally incapacitatedfromparticipatinginthe heanng ofthe appeal Itcannot be otherwise merely because this Courthas tc pronounce onaconstitutionalissue Order accordingly Cases referredto The Republic ν Vassiliades H967) 3C L R 82, Rodosthenous ν The Republic, Ϊ RSCC127. 990 10 3 C.L.R. Republicv. Kyriacou TheAttorney-General oftheRepublic v. Ibrahim.1964C.L.R. 195; Georghiouv.TheRepublic
(1987)3 C.L.R. 980. Preliminary point. Preliminary point raised by counsel for the respondent as to 5 whether when the Supreme Court is dealing with an issue of constitutionality allJudgesofthe Supreme Courtareentitled tosit and, therefore, thetrialJudge againstwhosejudgment the appeal wasmadeshould have been invited tosit, ifhe so wished. 10 N. Charalambous, Senior Counsel of the Republic, for the appellant. K. Talarides, for the respondent. Cur.adv. vult 7RIANTAFYLLIDES P. read the following decision of the Court.ThisisanappealbythePublicServiceCommission against 15 the first instance judgment of a Judge of this Court by means of which there were annulled two appointments made by the respondent tothepost of Conservator of Forests. The saidjudgment was given in determining a recourse made, under Article 146 of the Constitution, by the respondent to this 20 appeal, who wasthe applicant before the trialJudge; and tosuch recourse the now appellant Public Service Commission was the respondent. The reason forannullingthe appointments inquestion wasthat the Public Service Commission had acted without competence in 25 the matter because, as was found by the trial Judge, it was constituted ina manner contrary tothe Constitution. At the start of the hearing of this appeal counsel for the respondent has raised the issue that when the Supreme Court is dealing with an issue of constitutionality, such as the one which 30 arisesinthepresent case,alltheJudgesoftheSupreme Court are entitled to sit and, therefore, the trial Judge against whose judgment this appeal was made should have been invited to sit, too, ifhe so wished. In accordance with the case of The Republic v. Vassiliades, 35
(1967)3 C.L.R. 82, which has been followed and applied consistently over many years, the quorum of the Supreme Court 991 Trtantafyllides P. Republic v. Kyriacou
(1987)forthepurposeofhearingarevisionaljurisdictionappeal,suchas the present one, under the proviso to section 11
(2)of the Administration of Justice {Miscellaneous Provisions) Law, 1964 (Law33/64), ismore than half the number of theJudges ofthe Courtholdingoffice atanygiventime;andtherearesittingnowto 5 hear this appeal seven out of the nine Judges of our Supreme Court. Moreover, according to case-law as Rodosthenous v. The Republic, 1 R.S.C.C. 127, and the Vassiliades case, supra, the Judge of theSupreme Courtfrom whosejudgment anappeal is 10 being heard is legally incapacitated from participating in the hearingoftheappeal from hisownjudgment;andthiscannotbe otherwise merely because a constitutional issue has to be pronounced onindeterminingtheappeal. It must be bome in mind that a most basic issue of our 15 constitutionallaw,namelythevalidityofthelegislationbyvirtueof whichourSupremeCourtfunctions, wasdecidedbyanappellate benchofthree,outofthethenfiveJudges,ofourSupremeCourt (see The Attorney-General of the Republic v. Ibrahim,1964 C.L.R.195). 20 Itisclear, of course,thatwhen the FullBenchoftheSupreme Court sits to hear directly a case (see, inter alia, in this respect Georghiouv. The Republic, cases 36/86 etc., decision dated 4 June 1987,notreportedyet*)anyJudgeoftheCourtmaysitifhe sowishes. 25 In the light of all the foregoing we hold that this Bench is properlyconstitutedtohearthisappealanddetermineanyissueof constitutionalityarisinginit. Orderaccordingly. • Reportedin
(1987)3C.L.R.980. 992