Greek Communal Courts Law upheld as constitutional transitional provision despite retrospective effect and language discrepancies.

[*18] 1964 December 3

(ZEKIA P., VASSILIADES, TRIATAFYLLIDES, MUNIR, JOSEPHIDES, JJ.)

In the matter of Article 144 of the Constitution

In the matter of a reference by the Greek Communal

Court of Famagusta in application N0.13/60, entitled –

In the matter of section 44 of the Courts of Justice Law, Cap. 8 and

In the matter of section 40( 2) (3) (4) (5) (6) and

(7) of the Courts of Justice Law 14/60 and Greek

Communal Chamber Law 9/1962,

and

In the matter of a maintenance application by Angeliki Ch. G. Pavlou and others, of Famagusta,

Applicant (Respondent)

and

Charalambos G. Pavlou, of Famagusta,

Respondent (Applicant)

(Case No.7/63)

Greek Communal Courts Law, 1962 (Law 9/62) — Section 18 not repugnant to Articles 61 , 87, 152 and 160 of the Constitution - Valid though retrospective — Article 3(6) of the Constitution - Non-publication of section 19 of Law 9/62 in the Turkish language not a defect in promulgation of Law.

Courts of Justice Law. Cap. 8 and the Courts of Justice Law of 1960 (Law 14/60) — Validity of order of maintenance made under section 44+ of Cap. 8 - Previous decision of Court regarding inapplicability of section 40(1) of Law 14/6O by virtue of Article 144.(3) of the Constitution concerns particular proceedings only — Of guidance value for other proceedings — No conclusion therefrom that section 44 of Cap. 8 is unconstitutional. [*19]

Legislation - Retrospective legislation, other than that prevented by Article 24 of the Constitution, not unconstitutional.

1. M. Papas, for Applicant (Respondent).

2. J. A. Kaniklides, for Respondent (Applicant).

3. G. C. Tornaritis, for the Greek Communal Chamber.

4· M. Spanos, Counsel of the Republic, on behalf of the Attorney-General.

JUDGMENT

TRIANTAFYLLIDES, J.: This is a reference made under Article 144 of the Constitution by the Greek Communal Court of Famagusta. The question as referred is: "Whether having regard to Articles 61, 87, 152 and 160 of the Constitution, section 18 of Law 9/1962 of the Greek Communal Chamber, is unconstitutional".

During the proceedings the question was also raised, by Direction given on the 14th February, 1963, as to whether, in view of the fact that section 19 of Law 9/62 published in the official Gazette on the 20th May, 1962, has not been included in the text of such Law as published in Turkish in the said official Gazette, there has not been proper publication of the said Law 9/62, thus invalidating such Law as a whole.

Section 18 of Law 9/62, (The Greek Communal Courts Law, 1:962) is a transitional provision and reads as follows:-

"18. Παρά τας διατάξεις του παρόντος Νόμου οιαδήποτε απόφασις ή

διάταγμα εκδοθέν υπό δικαστηρίου της Δημοκρατίας διαρκούσης της [*20] περιόδου από 16ης

Αυγούστου 1960, μέχρι της ημέρας ενάρξεως της ισχύος του παρόντος Νόμου επί αστικής διαφοράς αφορώσης

εις προσωπικόν

θεσμόν μελών της Ελληνικής Κοινότητος θα θεωρήται ως εγκύρως εκδοθείσα και θα

έχη πλήρη ισχύν ως εάν είχεν εκδοθή υπό πρωτοβαθμίου ή δευτεροβαθμίου

δικαστηρίου, ως θα ήτο η περίπτωσις, συσταθέντος επί τη βάσει του παρόντος

Νόμου".

("Notwithstanding the provisions of this Law, any decision or order issued by a court of the Republic during the period from the 16th August, 1960, until the coming into· force of this Law, on a civil dispute relating to personal status of members of the Greek Community, will be deemed to have been validly made and as having full force, as if it has been issued by a first-instance or appellate court, as the case may be, constituted on the basis of this Law").

The learned Greek Communal Court Judge decided on the 23rd January, 1963, to make this reference in the following circumstances:—

A certain, Angeliki Pavlou of Famagusta, had applied to the District Court of Famagusta in October, 1.960, against her husband Charalambos Pavlou, of Famagusta, for an order of maintenance of herself and her infant children, under section 14. of the Courts of Justice Law, Cap.8. Eventually, the application (N0.13/60, of the District Court, Famagusta) came up before the President of the Court on the 8th November, 1960. On that day, an order by consent was made whereby the respondent-husband was ordered to pay maintenance at the rate of £15.- per month as from the 1st December, 1960. [*21]

On the 14th November, 1962, the said husband applied to the Greek Communal Court of Famagusta, which had been set up tinder Law 9/62, for a variation of the maintenance order made on the 8th November, 1960, and also for an order directing that accumulated arrears should be paid off by smaller monthly instalments.

On the 22nd January, 1963, the application of the husband came up for hearing and it was decided to consolidate it with an application made by the wife for the recovery of the accumulated arrears.

On the 23nd January, 1963, counsel for the

husband raised the question of the unconstitutionality of section 18 of Law 9/62, whereupon this reference was made.

The Court has first examined the materiality, of the question referred,for the determination of matters at issue in the relevant proceedings. Though it is always expected of the court making the reference to go into this issue of materiality this Court is always entitled "once seised of a reference, to come, if need be, to its own conclusions in this respect". (The Mayor etc., Nicosia and Christakis Loizides,

1 R.S.C.C. p.59 at p.6o).

The issue of the constitutionality of section

18 appears to have been raised on the assumption that the order made on the 8th November, 1960, under section 44 of the Courts of Justice Law, Cap. 8, has been made invalidly.

But this issue itself was not raised, i.e. the constitutionality of the said section 44 at the time when the order in question was made. In our opinion, until such issue shall [*22] have been raised and determined, the question of the constitutionality of section 18 which seeks to validate decisions of maintenance given before the enactment of Law 9/62, and after the 16th August, 1960, cannot be a "matter at issue" in the proceedings in question, in the sense of Article 144(1).

It is correct that in the case of Tyllirou and Tylliros (3 E.S.C.C, , p. 21), it was held that section 40(1 ) of the Courts of Justice Law, 1960 (14/6o) which replaced the Courts of Justice Law, Cap. 8, was unconstitutional. It is correct also that the relevant provisions of section 44 of Cap. 8 and of section 40 of Law 14/60 are closely similar and in pari materiae.

The Decision, however, in Tyllirou and Tylliros, which by virtue of Article 144(3) operates so as to render section 40(1) of Law 14/60 "inapplicable" to the particular proceedings of that case only and can he of mere guidance value in other proceedings, does not necessarily lead to the conclusion that section 44 of Cap. 8 was also unconstitutional on the 8th November, 1960, when the maintenance order concerned was made.

Until the question of its unconstitutionality is raised, section 44 of Cap. 8 remains constitutional for so long as it was otherwise in force and the fact that section 1 8 of Law 9/62 seeks to validate, inter alia, maintenance orders made from the l6th August, 1960, onwards, ex abundante cautela, cannot be taken as laying down the unconstitutionality of section 44 of Cap. 8 after the said date, a thing which, in any case, could not have been laid down by Law 9/62. [*23]

If it ever becomes necessary to consider the constitutionality of s. 44 of Cap. 8, after the 1 6th August, 1960, it will have to be examined whether or not Article 190 can be taken to be applicable, as far as the first four months after the 16th August, 1960, are concerned, to the period intervening until the establishment of Communal Courts.

In view of the foregoing, we have come to the

conclusion that the question referred, viz. the unconstitutionality of section

18 of Law 9/62, was not material for the determination of any matter at issue, at the time, in the proceedings before the Greek Communal Court of Famagusta, because no question of the unconstitutionality of section 44 of Cap.8 had first been properly raised. From the record of the proceedings before the Greek Communal Court, it appears that counsel for the husband in raising the issue of the unconstitutionality of s.18 of Law 9/62 arbitrarily took it for granted that s.44 of Cap. 8 was unconstitutional. Nor can it be said that the learned Greek Communal Court Judge was bound to treat this assumption by counsel as amounting to the raising of the question of the unconstitutionality of section

44 of Cap. 8 and to refer it also. This Court, therefore, cannot under Article

144 determine, as such, the question referred to it.

As, however, the question of the unconstitutionality of section 1 8 of Law 9/62 has been argued, this Court will proceed to indicate its opinion thereon, as if it had been material, so as to guide the parties in case such issue were ever to become material (as in The Republic and Zacharias, 2 R.S.C.C. p.1). [*24]

Section 18, which has been quoted in full already, provides in effect that the courts of the Republic, in making, inter alia, maintenance orders between the 16th August, 1960, and the enactment of Law 9/62, should be deemed to have been Greek Communal Courts.

The question, thus, arises as to whether such retrospective provision is valid. There is nothing to be found in the Constitution to the effect that laws cannot be enacted with retrospective effect; on the contrary, Article 24, which prevents the enactment of certain retrospective legislation, clearly seems to imply that otherwise retrospective legislation is not contrary to the Constitution. It is indeed accepted that, with certain recognized exceptions, as in the case of the existence of vested rights, with which we are not concerned in this Case, there is no objection to legislation being enacted with retrospective effect, so long as it does not offend against the Constitution. Actually Article 104(2) provides in relation to laws of the Communal Chambers that "A communal Law shall come into operation on its publication in the official Gazette of the Republic unless another date is provided by such law".

Law 9/62 has been published on the 20th May, 1962, in the official Gazette. No other date is provided for in connection with the coming into effect of its substantive provisions. By virtue of such provisions Greek judicial officers of the Republic are designated to man the Greek Communal Courts as from that date. [*25]

Section 18 of the said Law is not one of its substantive provisions. It is a transitional one. It appears to us that it contains therein, by its very terms, clear provision that in as so far as it is concerned, Law 9/62 must be deemed to have come into effect on the 1 6th August,1960, designating the judicial officers who dealt with civil disputes relating to personal status until the enactment of Law 9/62, as judges of Greek Communal Courts for the purpose.

We are of the opinion that the provisions of section 18, which are intended to bridge a gap which existed between the coming into force of the Constitution on the 1 6th August, 1960, and the enactment of Law 9/62, being provisions of a Law which was enacted by the competent body under the Constitution and being intended to remedy the default of such body in not enacting earlier the said Law, are in no way repugnant to Articles 61, 87,

152 and 160 but, on the contrary, they are consistent with the very object of such Articles.

We come now to the question raised in connection with the publication of section 19 of Law 9/62.

Section 19 is also a transitional provision providing that the period between the 16th August, 1960, and the coming into operation of Law 9/62 shall not be taken into account in relation to any proceedings which had to be instituted within a prescribed period of time.

The Court is of the opinion that in view of the provisions of Article 3(6) of the Constitution, to the [*26] effect that the prevailing text of any law of a Communal Chamber published in the official Gazette shall be that of the language of the Communal Chamber concerned, the non-publication in Turkish also of section 19 of Law 9/62 is not a defect in promulgation which should be treated as fatal to the validity of the Law in question, but has resulted in a difference between the Greek and Turkish texts of the said Law which is to be resolved in accordance with the above-cited provisions of Article 3(6).

In concluding we would observe that the issue of the validity of the order of maintenance made on the 8th November, 1960 under s. 44 of Cap. 8, need not affect the course of the proceedings before the Greek Communal Court as far as fixing the amount to be paid as maintenance is cocerned, because even though the said Court is faced with an application to vary the order made on the 8th November, 1960, it is open to it to make a new maintenance order taking into, consideration the order previously made as a relevant factor only.

Order in terms.