Cyprus Supreme Court declares absolute food prohibition unconstitutional if it denies a fair hearing to prove safety.

[*107] 1961 November 24

(FORSTHOFF, P., TRIANTAFYLLIDES and MUNIR, JJ.)

(April 18, May 30, September 9, November 16, 24, 1961)

IN THE MATTER OF ARTICLE 144 OF THE CONSTITUTION,

AND

IN THE MATTER OF A REFERENCE BY THE DISTRICT COURT OF NICOSIA, IN CRIMINAL CASE No. 6806/60, THE MAYOR ETC. OF NICOSIA and THE CYPRUS OIL INDUSTRIES LTD. OF AY. GEORGHIOS, KYRENIA.

(Case No. 13/61)

Sale of Food and Drugs Law, Cap. 261 — Sections 2, 3 and 4, not unconstitutional in themselves, in relation to Art. 25 — Section 3 is unconstitutional in its application because of the provisions of Arts. 25 & 30 — Absolute prohibition — Olive-oil to which olive-kernel-oil has been added — Article of food, injurious to health.

Article 25 — Formalities, conditions or restrictions.

Article 30 — “Fair and public hearing”, right to.

Article 188 — Modifications.

Sale of Food and Drugs Regulations — Regulations 2 and 3.

Words and phrases — “Fair and public, hearing” in Art. 30.2.

During the hearing of criminal proceedings instituted by the Municipality of Nicosia against the Cyprus Oil Industries Ltd., of Ayios Georghios, Kyrenia, for allegedly selling goods contrary to the provisions of sections 2(1), 3(2)(3), (4) and 4(1) (2) &

(4) of the Sale of Food and Drugs Law, Cap. 261, and of regulations 2 and 3 of the Regulations made thereunder[1], the following question was reserved, under Article 144 of the Constitution, for the decision of this Court:-

“Whether the provisions of sections 2, 3 and 4 of the Sale of Food and Drugs Law, Cap. 261, and the provisions of regulations 2 and 3 of the Sale of Food and Drugs Regulations, under which the charge against the accused is brought, are unconstitutional as contravening the provisions of Article 25 of the Constitution”.

Held : (a) the provisions of sections 2, 3 and 4 of the Sale of Food and Drugs Law, Cap. 261, were not unconstitutional in themselves as being contrary to the provisions of Art. 25 ;

(b) the provisions of section 3(4) of Cap. 261, which imposes an absolute prohibition on the sale of any article of food listed in the Appendix to the Regulations made thereunder, to which had been added any preservative or other ingredient or material other than that permitted by such Regulations, was unconstitutional in its application as being contrary to, and inconsistent with, the provisions of Arts. 25 and 30 ;

(c) in accordance with the provisions of Art. 25.2, a law could only [*108] prescribe formalities, conditions or restrictions which were, inter alia, “necessary only in the interests of……..the public safety……..or the public health……..or in the public interest”;

(d) the trial court in this particular case might apply section 3(4) of Cap. 261, modified, by inserting in paragraph (a) of the said section, immediately after the words “this Law”, the words “and unless the contrary is proved”, so as to bring it into accord with the Constitution ;

(e) the question of the unconstitutionality of Regulations 2 and 3 of the Sale of Food and Drugs Regulations, was covered by the Court’s decision regarding section 3 of Cap. 261.

Cases referred to :

Hannis Djirkalli and The Republic (Chief Revenue Officer), 1 R.S.C.C.

The Mayor etc., Nicosia and Christakis Loizides, 1 R.S.C.C.

A. Triantafyllides for the Cyprus Oil Industries Ltd.

L. Demetriades for the Mayor etc., of Nicosia.

Cur. adv. vult.

May, 30. The Interim Decision of the Court was read by:

FORSTHOFF, P. : The Court declares that—

(a) the provisions of sections 2, 3 and 4 of the Sale of Food and Drugs the Constitution and are not, therefore, unconstitutional on the ground of such contravention ;

(b) the question of the unconstitutionality of the provisions of regulations 2 and 3 of the Sale of Food and Drugs Regulations, having regard to the provisions of Article 25 of the Constitution, would depend on the application of the aforesaid Regulations and the Appendix thereto to the particular article of food in question.

The Court, therefore, has decided that it is necessary for it to hear evidence in this case as to whether the application of sections 2 and 3 of CAP 261 and of regulations 2 and 3 of the aforesaid Regulations and the Appendix thereto to the particular article of food and the resulting prohibition of the sale of such article would be unconstitutional as being in contravention of the provisions of Article 25 of the Constitution.[*109]

†This case is a reference from the District Court of Nicosia dated the 23rd February, 1961, and made under the provisions of paragraph 1 of Article

144 of the Constitution. It was received in the Registry of this Court on the 9th March, 1961, and came up for hearing on the 18th April, 1961.

The question, as reserved for the

decision of this Court, is as follows :-

“Whether the provisions of sections 2, 3 and 4 of the Sale of Food and Drugs Law, CAP 261, and the provisions and Regulations 2, 3 of the Sale of Food and Drugs Regulations under which the charge against the accused is brought, are unconstitutional as contravening the provisions of Article 25 of the Constitution”.

At the hearing counsel for the Cyprus Oil Industries Ltd., made various preliminary submissions concerning the form and contents of the reference, but, having regard to all the circumstances of this case and in view of the decision of this Court in Case No. 23/61[2], such submissions cannot be upheld.

With regard to the submission made by counsel for the above - mentioned Company that the provisions of paragraph (2) of regulation 3 of the Sale of Food and Drugs Regulations are ultra vires the provisions of CAP 261 under which they are made, as this matter, in this case, is within the jurisdiction of the District Court hearing the criminal case in question, this Court does not propose dealing with it.

The Court is of the opinion that none of the provisions of sections 2, 3 or 4 of CAP 261 are unconstitutional in themselves as being in contravention of Article 25 of the Constitution.

It is true that sub-section (1) of section 2 of CAP 261, contains, inter alia, a very wide definition of “food”, but there is nothing contained in that definition which makes its provisions unconstitutional in themselves.

The Court is further of the opinion that there is nothing contained in the provisions of section 4 of CAP 261 which would make the section unconstitutional in itself as being in contravention of Article 25, particularly having regard to the wording of sub-section (4) thereof and when read in conjunction with section 6 of CAP 261, which provides for protection from liability where the particular article of food is properly labelled.

The Court will now deal with the question of the unconstitutionality [*110] of section 3 of CAP 261. Sub-section (4) of that section provides that the addition of any preservative or other ingredient or material to an article of food which is made in contravention of the Regulations made under CAP261, shall, for the purposes of that Law “be deemed to render the article injurious to health”. It is also true that sub-section

(4) of section 3, unlike sub-section (4) of section 4, does not give a person accused of an offence under the said section 3 an opportunity to prove the contrary, i.e. to prove that the article in question is not “injurious to health”.

The irrebuttable presumption thus created by subsection (4) of section 3, in effect amounts to an absolute prohibition of the sale of any article of food listed in the Appendix to the Sale of Food and Drugs Regulations to which has been added any preservative or other ingredient or material, other than those permitted by such Regulations.

The question which, therefore, arises is whether such an absolute prohibition of the sale of any particular article to which has been added any such preservative or other ingredient or material, in contravention of the Sale of Food and Drugs Regulations, would in itself be in contravention of Article 25 of the Constitution.

Paragraph 1 of Article 25 of the Constitution guarantees to every person the right to practise any profession or to carry on any occupation, trade or business. Paragraph 2 of the said Article

25 proceeds, however, to provide as follows :-

“The exercise of this right may be subject to such formalities, conditions or restrictions as are prescribed by law and relate exclusively to the qualifications usually required for the exercise of any profession or are necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by this Constitution to any person or in the public interest :

Provided that no such formalities, conditions or restrictions purporting to be in the public interest shall be prescribed by a law if such formality, condition or restriction is contrary to the interests of either Community”.

In this reference it is clear from the particulars of the charges set out in paragraph I of the reference that the particular case which forms the subject-matter of this reference concerns the sale of “olive oil” to which has been added “olive kernel oil”.

The question of the unconstitutionality of the application [*111] of sub-section (4) of section 3 of CAP 261, read in conjunction with the relevant provisions of the Regulations made under CAP 261, which this Court must consider with regard to this particular reference, is whether or not the resulting absolute prohibition of the sale of “olive oil”, as defined in regulation 2 of the Sale of Food and Drugs Regulations, to which there has been added “olive kernel oil”, is in contravention of the provisions of Article 25, i.e. whether or not such an absolute prohibition of sale of such mixture is “necessary only in the interests of.....the public safety.......or the public health.....or in the public interest”, as provided in paragraph 2 of the said Article 25.

The Court is of the opinion that it has become necessary in this case for it to hear evidence on the above issue before it can decide whether or not the absolute prohibition of the sale of “olive oil” to which has been added “olive kernel oil” is constitutional under the provisions of paragraph 2 of the aforesaid Article 25 of the Constitution.

November, 24. The Decision of the Court was read by:

FORSTHOFF, P. : The Court declares—

(a) The provisions of sections 2 and 4 of the Sale of Food and Drugs Law, CAP 261, are not unconstitutional as being contrary to, or inconsistent with, Article 25.

(b) The provisions of section 3 of the Sale of Food and Drugs Law, CAP 261, are unconstitutional –

(i) in so far as they impose an absolute prohibition on the sale of an article of food which is not injurious to health and the prohibition of which sale is not, therefore, necessary in the interests of the public safety or the public health or in the public interest as being contrary to, and inconsistent with, Article 25 ;

(ii) in so far as they prevent a person charged with an offence under the said section 3 from showing that the addition of any preservative or other ingredient or material to an article of food has not rendered such article of food injurious to health, as being contrary to, and inconsistent with, Article 30.

This is a reference from the District Court of Nicosia dated the 23rd February, 1961, and made under the provisions of paragraph 1 of Article 144 of the Constitution during the hearing of criminal case No. 6806/60. It was received in [*112] the Registry of this Court on the 9th March, 1961, and came up for hearing on the 18th April, 1961.

The question, as reserved for the

decision of this Court, is as follows:-

“Whether the provisions of sections 2, 3 and 4 of the Sale of Food and Drugs Law, CAP 261 and the provisions and Regulations 2, 3 of the Sale of Food and Drugs Regulations under which the charge against the accused is brought, are unconstitutional as contravening the provisions of Article 25 of the Constitution”.

At the conclusion of the hearing of the Case on the 18th April, 1961, the Court reserved its Decision. In considering such Decision the Court found it necessary to give an Interim

Decision which it delivered on the 30th May, 1961. The Order made in that Interim

Decision, and the reasons therefor, are fully set out in the said Interim

Decision and need not be repeated here.

The Case was fixed for mention on the 29th September, 1961, in order to enable the parties to consider, in the meantime, the position in the light of the Interim Decision. The hearing of the Case was duly resumed on the 6th November, 1961, and expert evidence was heard in accordance with the said Interim Decision. The final Decision of the Court was reserved until today.

In the above-mentioned Interim

Decision of the 30th May, 1961, the Court has, in effect, disposed of the question of the alleged unconstitutionality of sections 2 and 4 of CAP. 261 and, in the light of the subsequent proceedings, the Court now declares that the said sections are not unconstitutional.

With regard to the question of the alleged unconstitutionality of section

3 of CAP. 261, as pointed out in the above-mentioned Interim Decision, sub-section (4) of that section provides that the addition of any preservative or other ingredient or material to an article of food which is made in contravention of the Regulations made under CAP. 261, shall, for the purposes of that Law, “be deemed to render the article injurious to health”. The said sub-section, unlike sub-section (4) of section 4 of CAP. 261, does not give a person accused of an offence under the said section 3 an opportunity to prove the contrary, i.e. to prove that the article in question is not “injurious to health”.

The Court observed in the above-mentioned Interim Decision that the irrebuttable presumption thus created by sub-section (4) of section 3 amounts, in effect, to an absolute prohibition of the sale of any article of food listed in the Appendix to the Sale of Food and Drugs Regulations to which [*113] has been added any preservative or other ingredient or material, other than those permitted by such Regulations.

In deciding to hear expert evidence regarding the issues of “public safety”, “public health” and “the public interest” the Court considered it relevant to examine the issue of “the public interest” only in so far as it related to the issue of the article of food in question being “injurious to health”, because for other aspects of “the public interest” provision is made in section 4 of CAP.261 which the Court has already declared not to be unconstitutional, as well as elsewhere in CAP.261.

The expert evidence adduced before the Court at the resumed hearing clearly showed that it was possible to extract oil from the kernel of the olive-fruit in such a manner as not to render the resulting olive kernel oil injurious to health, and that there were, however, other processes which resulted in the introduction into the olive kernel-oil so produced of ingredients which were injurious to health.

The object of the absolute prohibition which results from the provisions of section 3 of CAP.261 (a Law which was enacted before the coming into operation of the Constitution) was, no doubt, to avoid the necessity for having to ascertain, in each particular case, whether any particular food product, i.e. an article of food to which any preservative or other ingredient or material has been added, was in fact “injurious to health” so long as there was a possibility, in certain cases, for such food product to be so “injurious to health”. The achievement of such an object in this manner, however, is no longer constitutionally possible having regard to the provisions of Article 25 of the Constitution.

Under the provisions of paragraph 2 of Article 25 a law can only prescribe formalities, conditions or restrictions which are, inter alia, “necessary only in the interests of….the public safety….or the public health….or in the public interest”.

In as much as it is possible for a particular food product as aforesaid to be “injurious to health” in certain circumstances and not to be “injurious to health” in other circumstances, then the Court is of the opinion that such an absolute prohibition of the sale of such food product as that created by section 3 of CAP.261, resulting from the fiction that the food product in question is irrebuttably deemed to be “injurious to health”, is, therefore, beyond the ambit of the provisions of paragraph 2 of Article 25 of the Constitution.

Furthermore, for as long as there is a possibility that a particular article of food may not be injurious to health, then to deprive a person, who is accused of an offence under section 3 of CAP.261 of selling an article of food which is [*114] “deemed” to be “injurious to health”, of the opportunity to prove that the particular article of food which is the subject matter of the alleged offence is not, in fact, “injurious to health” is, in the opinion of the Court, contrary both to the letter and spirit of Article 30 of the Constitution and in particular of paragraph 2 thereof, the relevant portion of which reads as follows :-

“In the determination of his civil rights and obligations or of any criminal charge against him, every person is entitled to a fair and public hearing within a reasonable time by an independent, impartial and competent court established by law”.

The Court is of the opinion that to deprive a person charged with an offence contrary to section 3 of CAP.261 of the opportunity of showing that the particular article of food in question is not in fact “injurious to health”, is tantamount to denying such person “a fair.... hearing” in the sense of paragraph 2 of Article 30 of the Constitution.

This principle has also been followed by this Court in Case No. 4/60*[3].

For all the reasons given above, the Court is of the opinion that sub-section (4) of section 3 of CAP.261 is unconstitutional in so far as it prevents a person charged with an offence under the said section 3 from showing that the addition of any preservative or other ingredient or material to the particular article of food in question has not in fact rendered such article of food “injurious to health”.

It is for the trial court in the Case under reference to apply sub-section (4) of section 3 of CAP.261, modified in the light of this Decision, so as to bring it into accord with the Constitution as provided by paragraph 4 of Article 188. In this respect the Court is of the opinion that such modification could properly be made by inserting in paragraph

(a) of the said sub-section (4), immediately after the words “this Law”, the words “and unless the contrary is proved”, thus affording the accused person concerned, as in the case of subsection (4) of section 4 of CAP.261, an opportunity of avoiding conviction by proving that the particular article of food in question is not in fact “injurious to health”.

Although regulations 2 and 3 of the Sale of Food and Drugs Regulations are included in the question as reserved for the decision of this Court, in the opinion of the Court the question of their constitutionality does not have to be dealt with separately as the matter is covered by the Court’s decision regarding the unconstitutionality of section 3 of CAP.261, in which the said regulations are incorporated by reference.

[1] * Subsidiary Legislation of Cyprus, Vol. I, p. 286.

[2]*The Mayor etc., Nicosia and Christakis Loizides, 1 R.S.C.C.

*Hannis Djirkalli of Morphou and The Republic (Chief Revenue Officer), 1 R.S.C.C., letter B p. 40.

[3]