clr/1988/1988_2_130.pdf

(1)of the CriminalProcedureLaw,Cap.155iswhether,inthelightofsection 10 5oftheCourtsofJusticeLaw,14/60,asamendedbys.4ofLaw58/ 72,therecanparticipate inthecomposition ofanAssizeCourttwo PresidentsofDistrictCourt. Held:

(1)When the wording of the Law is by itself clear and unambiguous,then tothewordsusedbythelegislatorthereisgiven 15 theirnaturalandordinarymeaning,andtheintentionofthelegislator insuchaninstanceisdrawnfromthemandtheredoesnotexistany reasontorefertoanyotherruleofconstructionforascertainingthe intentionofthelegislator.

(2)Theprovisioninquestionisclear,unambiguousandimperative 20 and leaves no room for any doubt. Consequently there are no marginsformorethanonePresidentofaDistrictCourttoparticipate initscomposition. Orderaccordingly. (Note: This is an English translation of the judgment in Greek appearingatpp. 124-129ante). 130 2 C.L.R. Republic v. Kafkaris and Others Question ofLaw Reserved. Question ofLawreservedbytheAssizeCourtofLimassolsitting atNicosiaundersection 148oftheCriminalProcedureLaw,Cap. 155ontheapplication oftheHonourableAttorney-General ofthe Republic regarding the composition of the above Assize Court in 5 view of the fact that asfrom 1stSeptember, 1988two Presidents would be participating in it as the appointment of Y. '"-"istantinides to President would commence as from : ,t date. 10 M. TriantafyHides, Attorney-General of the Republic withM. Kyprianou, Senior Counsel of the Republic, A. Vassiliades and CI. HadjiPetrou,for the Republic. Chr.Pourgourides withP.Erotokritou, forthe accused. Cur.adv. vult. A.LOIZOUP.readthefollowingjudgmentoftheCourt.Thisis 15 our opinion tothe Question of LawReserved bytheAssize Court of Limassol, which by virtue of a decision of this Court sits in Nicosia for the trialof Criminal Case No.23069/87, having been reserved on the application of the Honourable Attorney-General of the Republic under the provisions of Section 148{1) of the 20 Criminal Procedure Law, Cap. 155. The three accused are charged before thisAssize Court on the first count for conspiracy to murder Panikos Michael and on counts 2, 3, and 4 for the premeditated murder of Panikos Michael, ChristakisMichael and MichaelMichael.Accused 2 and 25 3 face alsochargesof possession of explosivesubstances. On the 3rd June, 1988 the hearing of the case commenced before the Assize Court composed of their Honours Chr. Artemides, President, Y. Constantinides, Senior District Judge and S. Nathanael, ActingDistrictJudge. 30 In the course of the proceedings the Honourable AttorneyGeneral of the Republic submitted to the Assize Court certain applicationswhichweredismissed.Thereafter applicationsfor the issueofOrdersofCertiorariandMandamusforthequashingofthe said Decisions of the Assize Court were filed in the Supreme 35 Court. By order of the learned Justice Malachtos, the further hearing of the case was stayed until the trial of the said applications.ThelearnedJusticedismissedtheapplicationson the 30th July 1988 and the Honourable 'Attorney-General appealed from thesaidjudgmentsand these appealsundernumbers7685, 131 A. Loizou P. Republic v. Kafkaris and Others

(1988)and 7686 were fixed for hearing by the Full Bench on the 29th August 1988. On the 12th August, the HonouraW Attorney-General raised the question regarding the composition oftheAssizeCourt. More concretely he submitted thatasfrom the 1stSeptember 1988the 5 composition of the Assize Court would notbe inaccordance with theLawastherewereparticipating inittwoPresidents,thatistheir HonoursChr.ArtemidesandY.Constantinides.The appointment of Y.Con<:tantiniHps ac President commenced as from that date. Thegroundsoflawadvanced bytheHonourable Attorney-General 10 insupport ofhissubmission touch theconstruction ofSection 5of the Courts of Justice Law 1960 (Law No. 14 of 1960), as it has been amended bySection 4oftheCourtsofJustice (Amendment) Law 1972 (Law No. 58 of 1972). The submission was that the provisions of this section do not allow the participation of more 15 than one President inthe composition of anAssize Court. TheAssizeCourtbyitsDecisiondismissedthissubmissionofthe Honourable Attorney-General. After the aforesaid Decision,theHonourable Attorney-General applied under Section 148

(1)of the Criminal Procedure Law, 20 Cap. 155that theAssize Courtreserved thesaidQuestion of Law for the opinion of the Supreme Court as it ought to do once the question which was raised was in the view of the Assize Court a legal one. The Question of Law reserved isthe following: 25 «Whether in view of the fact that His Honour Y. Constantinides, Senior District Judge will be as from the 1st September 1988, President of a District Court, the Assize Courtwithitspresent composition mayinviewofSection5of theCourtsofJustice Law,1960(LawNo.14of1960),asithas 30 been amended by Section 4 of the Courts of Justice (Amendment) Law 1972 (Law No. 58 of 1972), hear further thiscase on the 3rd September 1988,when ithad fixed itfor continuation before it in view of the fact that then the Court willbe composed bytwoPresidentsand one DistrictJudge.» 35 The Assize Courts have been established by Sections 3 of the Courts of Justice Law 1960, which was enacted in view of the provisions of Article 152.1 of the Constitution. Bythe same Law the composition, thejurisdiction and their powersare prescribed. 132 2 C.L.R. Republic v. Kafkaris and Others A. Loizou P. Their composition isprescnbed bySection 5, which provides the following: c 10 «5. An Assize Court shall be composed of a President of a District Court, who shall preside, and two Senior District Judges or District Judges, to be nominated by the Supreme Court: Provided that the Supreme Court may, in any case other than in a case where the accused ischarged with an offence punishable with death, when the circumstances so require, direct that an AssizeCourt may be composed of three Senior DistrictJudges to be nominated bythe Supreme Court to be presided over by one of such Senior District Judges as the Supreme Court may designate.» For the purposes of the Decision it is not necessary to deal at 15 length with the principles governing the construction of statutes, suffice ittosay that when the wording of the Law isbyitself clear and unambiguous, then to the wordsused bythe legislator there i;;given their natural and ordinary meaning, and the intention of trie legislator in such an instance is drawn from them and there 20 doesnotexistanyreason torefer toanyother ruleof construction forascertainingtheintention ofthelegislator.Thisprinciplehasso veilbeen established thatthere doesnotexistanyneed torefer to any concrete authority. Section5asitisformulated providesthattheAssizeCourt«shall 25 he composed ofone President DistrictCourt...and willbe under ;he chairmanship of the President of the District Court.» Thisprovision isclear,unambiguousand imperativeand leaves no room for any doubt. Consequently there are no margins for more than one President of a District Court to participate in its 30 composition and we cannot give any other construction to this provision. Ontheotherhandtheprovisotothissection aimsexclusivelyto give to the Supreme Court power to constitute an Assize Court without the presence of a President of a District Court. This 35 proviso not only itdoes not change theintentionsof the legislator as they are framed in the main body of the section but it may be said that itstrengthens them because in the case of the main part ofthesection apart from thereference toone President,itgoeson and says that «it will be under the chairmanship of a President, 133 A.Loizou P. Republic v. Kafkaris and Others

(1988)District Court»whereas inthe instances where an Assize Court is setuponthebasisofthepowersgivenbytheproviso,itisrequired thattheSupremeCourtshoulddirectwhichofthemembersofthe AssizeCourt shall preside Forthese reasons our answertotheQuestion of LawReserved 5 for the opinion of the Supreme Court is that there cannot participate in the composition of an Assize Court more than one President, District Court and consequently as from the 1st, September 1988itscomposition willbecontrarytotheprovisions ofthe Lawand cannot beseized after that date of thiscase. 10 Given thatitisnecessarytohavetheAssizeCourt recomposed, itisdesirable thatitsnewcomposition initstotalityshould change sincethetrialmustcommence abinitio.Thismatter, however,will be considered by the Supreme Court on the basis of its powers underthe Law. Order accordingly. 134 15