(1988)1988April 7 [PIKJS, J.] INTHE MATTER OF ARTICLE 146OFTHECONSTITUTION ARISTOS MOSCHOVAKIS ANDANOTHER, Applicants, v. THE CYPRUS BROADCASTING CORPORATION, Respondents. (Case No. 315/88). Acts or decisions in the sense ofArticle 146.1of the Constitution—Foremost criterion—The purpose aimed tobe served—If it is apublic purpose, the act naturallyfalls in the domain of public law—The question whether it serves apublic purpose depends ontheobjectof thedecision andtheinter est of thepublic or sections of itintheachievementof suchpurpose. Legitimate interest—Itshouldbe direct. Revocation of anadministrative act—Reviewofprinciples applicable. Revocation of anunlawful administrativeact—Thetimefactor—It ceases tobe a constraint to the revocation, wheneverthesubject hascontributed byhis action or omission to theproduction of theunlawfulact. Revocation of anunlawful administrative act—AnAct, whichis theproduct of misconception offacts, is an unlawfulact. Legitimate interest—Whenever anactaffects the interest of two or moreper sons, anyoneof themmaychallengeitbyarecoursefor annulment. yThesubjudice decisioninthiscaseisadecision,wherebyanearlierde cision,concerning thechoiceof thesong "ΘΥΜΑΜΑΙ"(IREMEMBER) torepresentCyprusattheAnnual Eurovision SongContestof 1988,was revoked,on thegrounds that itwas theproductof misconception of factsin 750 3 C.L.R. 5 10 Maschovakis & Another v. C.B.C. that,asinfinally transpired,boththecomposerandthelyrics-writerwere disqualified undertheconditionsofthecontest. / Therecourse,asfar asthesingerofthesongwasconcerned,wasdismissedonthegroundthathisinterestis,atmost,indirect,becausehehad notbeenappointedbytherespondents,whoweretheonlypersonscompetenttochooseasinger,butbythecomposerandthelyric-writer. Havingfoundthatthesubjudicedecisionisanactinthedomainofthe public law,becauseit is inextricably connected with thepromotion ofa publicpurpose,namelythemusicalrepresentationofCyprusinthecontext of theEuropean SongContest,and that,before arrivingatit,therespondentsconducted athorough inquiry intothefacts and that it isdulyreasoned,theCourtdismissedtherecourse. Indismissingtherecourse,theCourtexpoundedtheprinciples,which aresufficiently indicatedinthehereinaboveheadnote. *^ Recoursedismissed. Noorderastocosts. Casesreferredto: AntoniouandOthersv.TheRepublic
(1984)3C.L.R. 623; Mahlouiaridesv. TheRepublic
(1985)3CLJ*.2342; 20 Galanos v.C.B.C.
(1984)3C.L.R. 742; Constantinides v.CM.C. 5R.S.C.C.34; Messaritou v.CB.C.
(1972)3C.L.R.100; Pitsillosv.CB.C.
(1982)3CJL.R. 208; Kontemeniotisv.CB.C.
(1982)3C.L.R.' 1027; -- Charalambidesv. TheRepublic. 1964CX.R.326; Paschaliv.TheRepublic
(1966)3C.L.R. 39; 751 Moschovakis & Another v. C.B.C.
(1988)YiangouandAnotherv. TheRepublic
(1976)3 C.L.R. 101; ChristofidesTrading v. TheRepublic
(1985)3 C.L.R. 546; Papadopoulosv. TheRepublic
(1985)3C.L.R. 154; K.and M. Transport Ltd. v.The Republic and Others
(1987)3C.L.R.
- 5 Recourse. Recourse against the decision of therespondent torevoke its earlier decision whereby the song "ΘΥΜΑΜΑΙ" (I REMEM BER) was chosen torepresent Cyprus at the Annual Eurovision Song Contest due to be held in the Republic of Ireland on 30.4.
- L. Clerides withN.Clerides,for theapplicants. . P. Polyviou, for therespondent. Cur. adv. vult. PIKIS J. read thefollowing judgment. At issue is thevalidity 15 of thedecision of theCyprus Broadcasting Corporationto revoke an earlier decision of the Corporation whereby the song "ΘΥΜΑΜΑΙ" (IREMEMBER) was chosen torepresent Cyprus at the Annual Eurovision Song Contestdue tobe held in the Re public of IrelandonApril 30,
- 20 The revocatory decision, taken on March 11, 1988, was taken after aninquiry intothecircumstancesthat preceded and attended the choice of the song on 10th February,
- On the basis of this inquiry therespondents concluded that theiroriginal decision was defective in that it had been taken in breach of theterms and 25 conditions of thecompetition.The inquiry was prompted by two publications in the daily press that appeared on February 22, 1988 (newspapers ALITHIA and SIMERINI) suggesting that 752 1 0 3 C.L.R. 5 ,« ,,- Moschovakis & Another v. C.B.C. Pikis J. contrary tothetermsof thecompetition theversesof thesong,its composer and lyrics-writer, became known through a series of publications in the press as far back as
- In conseqence the • anonymity, essentialfor participation in thecompetition, hadbeen forfeited long ago.Inthecourseof theinquiry another significant disqualifying factor emerged. The writer of the lyrics, namely, John Vickers,wasneitheraCypriot national noraCypriot bydescent. Consequently, he was disqualified from participating in viewofanexpresscondition embodied in thetermsof thecompetition.And inasmuch asthedecision to choose "I REMEMBER" had been taken inignoranceor unawarenessof thefacts disqualifying thecomposersof thesong,thedecision wasrevoked in ordertorectify theanomaly. Aristos Moschovakis, thecomposer and, Yiannis Demetriou, the singer nominated by the composer and lyrics-writer to perform thesong,challenged thedecision torevoke thechoiceof the song "I REMEMBER" to represent Cyprus. In their contention therevocatory decision isdefective for lackof duereasoning and the inadequacy of the inquiry; particularly, the failure of therespondents toafford the parties an opportunity tocontrovert allegationsrelevant totheeligibility of thecontestantsand thesong. Therespondents supported thedecision aswell founded in fact and duly reasoned in substance. Moreover, they questioned the legitimacy of theinterest of thesinger toseek thejudicial review of the subjudice decision. More significantly, they doubted the justiciability of thesubject matter of therecourse. Asamatter of logicalpriorities wemustdispose of the lasttwoobjections inreverse order at that as they go to the root of the proceedings and affect thejurisdiction of theCourt. 35 To bejusticiable under Article 146.1 of the Constitution, the administrative decision atissue must bein thedomain of public law. As explained inAntoniou and Others v.Republic
(1984)3 C.L.R. 623 "thedomain of public law encompasses decisions expressive of thepolicyof theAdministration inmattersof interesttothepublic atlargeoradistinct section of it." 753 PikisJ. Moschovakis &Another v.C.B.C.
(1988)TheapproachoftheCourtinAntoniou, supra,totheclassification of actsand thedemarcation of thepublicandprivatedomainsoflaw,wassanctionedbytheFullBenchinMahlouzarides v.Republic
(1985)3C.L.R.2342.Anempirical approach isfavouredtotheidentification ofthenatureoftheact.Theforemost 5 criterionisthepurposethatthedecisionaimstoserve.Ifintended toserveapublicpurposethedecisionnaturallyfallsinthedomain of public law.Whetherit serves such apurposedependsonthe object ofthedecision andtheinterestofthepublicorsectionsof itintheachievementofthatpurpose. Relying on the decision of the Full Bench in Galanos v. CM.C.
(1984)3 C.L.R. 742 amajority judgment, counsel for therespondentssubmittedthatthesubjudicedecisionisnotjusticiable.InthatcasetheFullBenchdecidedthatdecisionspertaining tothecommercial operations of theC.B.C, notably,itsadvertising policy, are notjusticiable.Theratioof thedecisionin Galanos,supra,asIperceiveit,isthattheadvertisingpolicyof theCorporation andcommercialconsiderationsassociatedtherewith aremainly of interest totheparties immediately involved thereto.Innowaydoesitdecidethatotherareasofactivityofthe Corporation arenotcognizableunderarticle 146.1oftheConstitution.Onthecontrary,numerouscasesdecidethatmanyother activitiesoftheCorporation aresubject tojudicialreviewbyadministrative action. (See inter alia, Constantinides v.CJi.C, 5 R.S.C.C. 34;Rita Messaritouv. C.B.C.
(1972)3C.L.R. 100; Pitsillos v. C.B.C.
(1982)3 C.L.R. 208; Kontemeniotis v. C.B.C.
(1982)3C.L.R. 1027). Thedecisionhereunderreviewaffects theculturalrepresentationof Cypruswithintheframework oftheEuropean SongContestorganisedbytheEuropeanBroadcastingUnion. Which songshouldrepresentCyprusandsubject towhatconditions,isof vastinterest tothepublic.Whereasthedecision as suchisinextricablyconnectedwiththepromotionofapublicpurpose,namely,themusicalrepresentationofCyprusinthecontext of theEuropean SongContest.Thecultureofthecountryandits 35 754 15 20 25 3C.L.R. Moschovakis &Another v.C.B.C. PikisJ. representationabroadareinvariablyofinteresttothepublic. Next,thelegitimacyof theinterestofYiannisDemetriou,the singersuggested bythecomposerandtheLyrics-writertosing* "IREMEMBER". - Thesingerwasnotaparticipantinthecompetition.-According. totheexplicittermsofthecompetition theparticipantswereexclusivelythecomposerandtheLyrics-writer.Theabsenceofa legitimateinterestinadecisiondoesnotnecessarilyentailabsence ofalegitimateinterestinasubsequentrevocatory decision.For, revocation of adecision mayadversely affectrightsthatcame intobeingintheprocessoftheimplementationofthedecision.In thiscase,however, nosuchrightsaccrued to the singerfor his nominationbythecomposerandLyrics-writerconferredonhim atbestanexpectation tobechosen astheperformer of thesong. UnderClause 10of thetermsof thecompetition final choiceof ** theperformer orperformers ofthesongvestedexclusivelyinthe respondents.In theabsenceof adecisionbytheCyprusBroadcastingCorporationchoosingYiannisDemetriouastheperformer of the song,YiannisDemetriou did not havetheinterestenvisagedbypara.2of article 146oftheConstitution toquestionthe 20 legitimacy of thedecision. Only a person with adirect, asopposed to indirect interest in the decision, can challenge itby meansofjudicialreview.TheinterestofYiannisDemetriouwas atthehighestindirect.Therefore,helacksthenecessaryinterest to seek review of the subjudice decision. His recourse will, 25 therefore,bedismissed.Theinterestofthecomposer,ontheotherhand,hasnotbeendoubtednordoesitdiminishintheabsence ofchallengebyJohnVickers,thefellow -participantinthecompetition.Wheneveradecisionaffects inthemannerenvisagedby para.2of article 146theinterestsof twoormorepersons,any30 oneofthemmaychallengethedecision,independendyoftheother. „, TheinvitationtotakepartinthecontestorganisedbytheCyprusBroadcastingCorporation for thechoiceofthesongto representCyprus,madeparticipation specifically dependentonthe observanceof aseriesof termsandconditionsdistributed atre755 Pikis J. Moschovakis &Another v. C.B.C.
(1988)quest tothecontestants. Applicant acknowledges hewasawareof thoseconditions and took partinthecompetition with knowledge of them. Clause 1(a)limited participation amongCypriotcomposers and Lyrics - writers. Seemingly this condition was designed to ensure that the composition and the Lyrics reflected music 5 trends of the country. John Vickers, the writer of the Lyrics (verses of the song), was not a Cypriot national; nor was he a person of Cypriot descent. He is an English national of English origin.Thefact that heismarried toaCypriot woman andresides and works in Cyprus for a number of years,does not make him a ,Q Cypriot, however broadly one may be inclined to interpret "Cypriot"in thecontext of thisclause.Theinterpretation accorded by the legal advisers of the respondents tothe term "Cypriot" in the context of Clause 1,that is,Cypriots nationals orpersons of Cypriot descent, is as broad as it could reasonably be. On the basis of this advice rendered on 22/1/88,therespondents treated asineligible Mr.James Williams tosubmit anentry for thecompetition.Theinvitation tosubmit entries wasexplicit that thecompetition was confined among Cypriot citizens. Consequently, John Vickers was ineligible toparticipate and the entry made by himself and Mr. Moschovakis was invalid ab initio. By submitting ^ the application the entrants, including Mr. Vickers, represented that they satisfied therelevant requirements for entry.Thisconstituted a misrepresentation affecting their eligibility. Irrespectiveof whether the representation wasmade innocently or otherwise, it 25 led therespondents toamisconception of thefacts relevant tothe eligibility of theentrants. Therespondents had laboured underothermaterial misconceptions, too,affecting theconditionsof entry specified byClauses2 and 6 (a). Contrary to the prohibition of Clause 2(a), the song 30 had been recorded for commercial purposes,a fact confirmed by Mr. Rotsides, theperson who had agreed with one orboth of the authors to promote the song commercially. Furthermore, the composer and the writer of the Lyrics were made known before the submission of theentry for thecompetition. The publications 35 produced before theCourt make itabundantly clear thatinthe af-. termath of the rejection of the same song at the 1984 Song Con756 3 C.L.R. 5 IQ ,* •" 30 35 Moschovakis & Another v. C.B.C. Pikis J. test, albeit presented with a different name - "ΣΑΝ TO ΡΟΚ ENTΡΟΛ" -thecomposer and1Lyrics -writer made statements aboutthe song disclosing thecomposer andthewriter of the Lyr ics (see,in particular, "FLASH" and "CYPRUS WEEKLY", periodicals). These disclosures, and the part taken by the authors.in . thedisclosures, ruled out theentry of the song for the 1988 com-.· petition in view of the explicit provisions of Clause 6(a). Ano nymity was, according to Clause 6(a) and Clause 7, a vital pre-; requisite for participation, necessary in order-to safeguard the impersonal characterof the competition. The facts founding the misconception are enumerated in the decision, as well as theconditions for the competition that were breached. The Board had also before it therelevant publications. Theinquiry, conducted with aview toascertaining the true facts of thecase, was thorough and far reaching. The suggestion that the applicant and his fellowVparticipant,John Vickers, were not given an opportunity to be heard in the matter, is wholly incor rect. They were invited to an interview on February 23, 1988, with Mr. Ch. Papadopoulos, Director of the Programmes of the Corporation, who specifically warned themof the possibility of revocation of thedecision of 10/2/88. A formal noticetothatend was addressed to the applicants on 27/2/88. and came to their hands on 29/2/88. The facts disqualifying the song were objec tively verifiable whereas the facts relevant to the nationality of Mr.Vickers were fully-investigated with his collaboration. The submission.that the sub judice act was notduty reasoned cannot be sustained. The same is true with regard tothe submission that theinquiry intothefacts was inadequate. •NonethelessMr.Clerides submitted it was incompetentfor the respondents torevoke theact because of the situation thatensued following the award of thecompetition to the applicant and Mr. Vickers. The applicant persisted in his preparations for the Eurovision Song Contest notwithstanding the verbal warning of 23rd and the formal on 27th February, 1988. The action of the applicant cannot be described but as rush and ill advised. Underthe provisions of Clause 10 of the Rules of Entry,responsibility for 757 Pikis J. Moschovakis & Another v. C.B.C.
(1988)preparation and projection ofthesongvested exclusively with the respondents. Therefore, any action of theapplicant in thatdirectiondid notderivefrom thedecision revoked norcan itbepegged toit.Counsel made lengthy reference totheprinciplesofadministrative law governing the revocation of an administrative act or 5 decision. These principles are nowhere more lucidly analysed than inLaw ofAdministrative Disputes by Stassinopoulos> 1951, p. 230et seq.Theseprinciplesmay besummarised as follows:(i)The Administration hasaninherent powertorevokeearlieractsordecisions. 1Q (ii)The amenity of theAdministration torevokeearlierdecisionsis not unlimited. It issubject torules designed toensure that the Administration observes the norms of good faith and heedsrightsthat may haveaccrued in consequence of itsdecisions. 15 (iii) The competence of the Administration to revoke depends, in the first place,on the legality of the act intended to berevoked. If the act of the Administration was avalid one it cannot be revoked if, as a result, a new factual situation has arisenthatentitles thesubject todemand adherencetoit. 20 (iv)Theconstraintson theamenity of theAdministration to revoke an earlier valid act ordecision have noapplication to unlawful acts provided the Administration acts within a reasonable time. (Charalambides v.Republic, 1964 C.L.R. 326; Iro Paschali v. The Republic
(1966)3 C.L.R. 539; Yiangou and Another v. The Republic
(1976)3 C.L.R. 101). An act founded, interalia,on amisconception ofthefacts isvoid and hastheattributesof unlawful administrative action. (v) What constitutes a reasonable time in this context is a matteroffact anddegree. (vi)The timefactor ceasestobeaconstraint for therevocation of an unlawful act whenever the subject has contributed 758 25 3Q 3 C.L.R. Moschovakis &Another v. C.B.C. Pikis J. byhisactionoromission totheproductionof theunlawful act. Applyingtheseprinciples tothefacts of ourcase wereach thefollowingconclusions:5 (A) Thedecision tochoose "IREMEMBER"to represent CuprusintheEurovision Song Contestwas illegal.Itwas founded onamisconceptionof thefacts relevant tothe eli gibility of the entrants,applicant Moschovakis andJohn Vickers,andtheeligibilityofthesong. 15 (B)Theentry was admittedin ingonanceof thetrue facts andinbreachof theconditionsforentry.Every termofthe rules regulating entry to the competition was essential (Christophides Trading v.Republic
(1985)3C.L.R.546; Papadopoulos v. Republic
(1985)3 C.L.R. 154; Κ & Μ. Transport Ltd. v. Republicand Others
(1987)3 C.L.R. 1939) andhadtobeheededasamatteroflegality andinthe interestsofequality amongthe contestants. 20 (C) Being anunlawful administrative actitwas opento the Administration torevoke it.Inseeking toelicitthetruefacts therespondentsactedwithpromptitude,fairness andaftera thorough inquiry into the facts. The decision cannotbe faulted forlackofdueexpeditionontheirpart. ™ Thisbeing thecaseitbecomesunnecessary toexaminetheex tenttowhich theapplicantandMr.Vickersinducedthe unlawful decisionby theirownactsoromissions. 25 3u Before finally disposing of thecase, I mustexpressmyappre ciation tocounsel for theirthoroughresearchintotheprinciples governing therevocatory powers of theAdministration,andthe clearpresentationof thecaseofeachoftheparties;assistancethat enabledmeto'dispose of thecasewithintheday. In theresult,therecourseis dismissed. Therevocatory actof 11thMarch, 1988,isconfirmed pursuanttotheprovisions of Ar ticle 146.4(a) of theConstitution.There will be noorderas to costs. Recourse dismissed. Noorderas to costs. 759