Supreme Constitutional Court declared Supplementary Appropriation Law invalid due to Council of Ministers fettering House of Representatives discretion.

[*144] 1961 December 14

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

(December 5, 12, 14, 1961)

THE VICE-PRESIDENT OF THE REPUBLIC,

AND

THE HOUSE OF REPRESENTATIVES, THROUGH ITS PRESIDENT.

(Case No. 121/61)

Communal Chambers — Grants under Art. 88.2 — Exclusive competence of the House of Representatives —- Increase of minimum amount of £2.000.000.

Budget & Budgetary provisions — Initiation and introduction by Council of Ministers — Arts. 81 and 167.

Bills — Introduction to the House by Council of Ministers —Part of the legislative process.

House of Representatives — Competence — Unfettered discretion — Art. 8.2.

Council of Ministers — Introduction of Bills, Arts. 81, 167 — Recommendations to the House.

On the 12th September, 1961, the House of Representatives, by a majority vote of 28 with one abstention and

8 dissenting Turkish votes, passed a law entitled The Supplementary Appropriation Law, No. 4 of 1961, allocating £525,000.000 to the Greek Communal Chamber and £750,00.000 to the Turkish Communal Chamber for their needs.

The said Law was on the 13th September, 1961, sent to the Vice-President of the Republic for promulgation, in accordance with Art. 51, but it was returned to the House for reconsideration on the ground that it was discriminatory.

The House of Representatives at its meeting of the 6th October, 1961, having considered the returned law pronounced, by a majority vote of 20 with 9 Turkish dissenting votes, that it persisted in its original decision.

As a result the Vice-President of the Republic, acting under Art. 138 of the Constitution, filed the present recourse on the 18th October, 1961, alleging that the law in question was discriminatory.

Held : (a) the Supplementary Appropriation Law, No. 4 of 1961, was not the Budget of the Republic ;

(b) unlike the normal course followed in financial matters, contained in Arts. 81 and 167, under which budgetary provisions have to be initiated and introduced to the House of Representatives by the Executive of the Republic, the allocation of any increase over the prescribed minimum of £2,000,000 in Art. 88.2, to be made to the Communal Chambers, was within the exclusive competence of the House of Representatives, in accordance with the proviso to Art. 88.2 ;

(c) irrespective of the fact that the introduction of a Bill to the House of Representatives was within the competence of the Council of Ministers, the consideration and introduction

of such a Bill was part of the legislative [*145] process (G. Papaphilippou and The Republic (Council of Ministers), 1 .R.

S. C.C., letter F, p. 62, affirmed) ;

(d) in the instant case there was nothing before the Court from which it could safely be deduced that the discretion of the House of Representatives was not fettered by the action of the Council of Ministers to include in the Bill the extent of the allocation of the increase;

(e) the Council of Ministers was not precluded in a matter of this nature from making recommendations to the House.

The grant was declared procedurally invalid.

Cases referred to :-

Georghios Papaphilippou and The Republic (Council of Ministers), 1 R.S.C.C.

O. Feridun, Deputy Attorney-General of the Republic, for the Vice-President.

G. N. Chryssafinis with G. Polyviou, for the House of Representatives.

Cur. adv. vult.

December, 16. The Judgment of the Court was ready by:

FORSTHOFF, P. : The grant to the Communal Chambers as provided for in the enactment described as “The Supplementary Appropriation Law (No. 4), 1961” is invalid, as having resulted through a process inconsistent with Article 88 of the Constitution.

This recourse, made by the Vice-President of the Republic under Article 138 of the Constitution and filed on the 18th October, 1961, seeks, inter alia, a declaration that the grant in “The Supplementary Appropriation Law (No.4), 1961” (hereinafter referred to as “the enactment”) allocating £525,000 to the Greek Communal Chamber and £75,000 to the Turkish Communal Chamber is discriminatory.

The House of Representatives filed an Opposition on the 13th November, 1961, in which, inter alia, the allegation of discrimination is denied.

The Case was heard on the 5th and 12th December, 1961, when certain preliminary issues were argued. The Court has reserved its decision until to-day.

Under Article 138 the Vice-President of the Republic is entitled to make a recourse against the Budget adopted by the House of Representatives on the ground that there is a discrimination. [*146]

It is obvious that the enactment is not the Budget of the Republic itself but deals with financial matters.

Counsel for the Vice-President has alleged that the enactment, though being a decision under Article 88, is a supplementary budget in the sense of paragraphs 5 and 6 of Article 167 and that such supplementary budget is included in the term “Budget” as contained in Article

138. These submissions have been contested by counsel for the House of Representatives.

It has not become necessary for the Court to decide the above issues, because in considering them the Court has ascertained that, in any case, it has not got before it an otherwise valid enactment.

Whatever the special legal character of the enactment may be, it is, at any rate, clear that it deals with the allocation of certain sums to the Communal Chabmers. Such grants are especially and exclusively governed by paragraph 2 of Article 88. The proviso to this paragraph lays down that in the case of the increase of the prescribed minmum amount of £2,000,000 the allocation shall be made in such a manner as the House of Representatives may decide. It must be observed that, according to the clear wording of the proviso, it is exclusively the House of Representatives which decides on such allocation.

This process is quite different from the normal course in financial matters. Such normal course is illustrated by Article 81 which provides that the Budget is to be introduced to the House of Representatives. Article 81 embodies the principle that budgetary provisions have to be initiated by the executive branch of government. This principle is further underlined in Article 167.

In the present case, however, the vital difference between such normal course and the special requirements of paragraph 2 of Article 88 has been overlooked and a defect in the legislative process has thus resulted.

What was intended to be an allocation made under the proviso to paragraph 2 of Article 88 was actually contained in a Bill introduced by the Council of Ministers. It is common ground that the Bill in question did not merely provide for the total amount which was to be allocated to both the Communal Chambers but did in fact already contain provision for the allocation of the total amount by granting £525,000 and £75,000 to the Greek and Turkish Communal Chambers respectively. It is further common ground that the House of Representatives deliberated on the basis of that Bill.

This Court has already stated in Papaphilippou v. The [*147] Republic (1 R.S.C.C., p. 62) that the consideration by the Council of Ministers of Bills to be introduced to the House of Representatives is closely linked with the exercise of legislative power. It follows, further, that the

introduction of a Bill is part of the legislative process itself.

It is an accepted principle that if a legislative or administrative proceeding is divided into several, more or less separated stages a defect, such as above, at a previous stage may possibly be cured at a subsequent stage through proper compliance with the prescribed procedure.

The Court could only resort to such principle if it would have had a sufficient knowledge of what had happened in those last steps of the legislative process which were taken by the House of Representatives both at the original deliberation and upon the return by the Vice-President. The Court has been unable to obtain a clear picture in this matter because it has not yet been possible for the House of Representatives, for understandable reasons, to prepare the approved minutes of the relevant meetings, which minutes are the necessary proof in this respect. The Court, therefore, had to decide the Case on the material available.

In view of the fact that -

(a) the allocation between the two Communal Chambers was already contained in the Bill as introduced to the House of Representatives,

(b) the House of Representatives deliberated on the basis of that Bill,

(c) the allocation as voted upon by the House of Representatives coincides exactly with the allocation as contained in the said Bill, and

(d) through the non-availability of the approved minutes of the House of Representatives the Court was not in a position to ascertain if the aforesaid defect in legislative process has been cured through the proceedings before the House of Representatives,

the Court, therefore, has not been able to exclude with sufficient certainty the possibility that the House of Representatives, in exercising its power under the proviso to paragraph 2 of Article 88, was fettered by the action of the Council of Ministers.

Thus, the Court decides that the enactment does not in effect constitute an exercise of the power vested in the House of Representatives by both the letter and the spirit of [*148] the proviso to paragraph 2 of Article 88 and is, therefore, invalid.

In view of this conclusion all other issues in this Case have ceased to be material and need not, therefore, be determined.

This Judgment should not be taken as precluding the Council of Ministers from making, in a matter of this nature, a recommendation in appropriate terms provided that it does not insert a provision to that effect in the relevant Bill.