Supreme Court dismisses constitutional challenge to Potato Marketing Board's export restrictions under Articles 23, 25, and 26 of the Constitution.

[*704] 1968 June 24

(TRIANTAFYLLIDES, J.)

REVISIONAL JURISDICTION

In the matter of Article 146 of the Constitution

Andreas K. Psaras,

Applicant,

and

1. The Republic of Cyprus, through

the Ministry of Commerce and Industry,

2. The Potato Marketing Board,

Respondents.

(Case No. 201/67).

Marketing - Potato Marketing Board - Exporting of potatoes through, or by permission of the Board - Constitutionality of sections 47 to 49 of the Cyprus Potato Marketing Law, 1964 (No. 59 of 1964) - Articles 23(3), 25 and 26 of the Constitution.

Constitutional Law - Constitution of Cyprus, Articles 23, 25 and 26 - Provisions of sections 47 to 49 of the Cyprus Potato Marketing Law, 1964 (No. 59 of 1964), not contrary to Articles 23, 25 and 26 of the Constitution.

Chr. Mitsides, for the Applicant.

K. Talarides, Senior Counsel of the Republic, for the Respondent No.1,

L. Clerides with J. Mavronicolas, for the Respondent No.2.

JUDGMENT

The following Judgment was delivered by: -

TRIANTAFYLLIDES. J.: In this Case the Applicant complains, in effect, against the refusal of the Cyprus Potato Marketing Board, Respondent 2, -to allow him to export his 1967-1968 winter crop of potatoes, to the United Kingdom, in a manner not in accordance with the arrangements made as a result of the enactment of the Cyprus Potato Marketing Law, 1964 (Law 59/64); the said Board functions under the supervision of the Minister of Commerce and Industry. [*705]

All else which is claimed by the motion for relief in the Application in this recourse cannot he treated as being relief which could he properly claimed within the ambit of the competence under Article 146; it only amounts, in my opinion, to argument in support of the claim of the Applicant for annulment of the said refusal, which constitutes an act or decision of Respondent 2.

The present dispute between the Applicant and Respondent 2 commenced as early as the 14th November, 1966, when the Applicant wrote to Respondent 2 (see exhibit 2), seeking permission to export directly, himself, to the United Kingdom his, at the time, crop of potatoes. Respondent 2 replied on the 17th November, 1966, in the negative (see exhibits 3A. and 3, which are, respectively, the original and a copy of the Board’s reply). By its reply the Board informed the Applicant that by virtue of section 48(2) of Law 59/64 the export of potatoes takes place through, or by permission, of the Board; that, in particular, in relation to the United Kingdom, the Board sells potatoes, on the basis of tenders, to Cypriot exporters; that, therefore, the Applicant could submit a tender for the purpose, and if he would purchase, in this way, potatoes, then the Board would allow him to pack his own potatoes as against the quantity of potatoes purchased from the Board.

It is common ground that, in relation to potato exports to, at any rate, the United Kingdom, the Board’s arrangements, under Law 59/64, have been at all material times as follows: -

Producers deliver their potatoes to the Board; the Board sells them to Cypriot exporters, on the basis [*706] of tenders; and then the net proceeds of the thus disposed of potatoes are distributed among the producers.

So the Applicant, being a producer, could, also, have acted as an exporter, by means of the method suggested in the Board's above-quoted reply.

Later, the Applicant, by letter of the 16th October, 1967 (see exhibit 1). reverted on to the matter and he sought permission to export his 1967-1968 winter crop of potatoes without complying with the Board’s arrangements for the purpose. On the 21st October, 1967, Respondent 2 wrote to the Applicant (see exhibit 4) informing him that there was nothing to be added to the contents of the letter of the 17th November, 1966 (exhibit 3).

This recourse was filed, as a result, on the 27th October, 1967.

The course of the proceedings in this Case has been a rather complicated one and it is necessary, in the circumstances, to put on record a short summary thereof:

On the same day when the recourse was filed the Applicant applied for a Provisional Order, to the effect, in substance, that he should be allowed, pending the proceedings, to export his potatoes directly, himself, without complying with the requirements laid down by Respondent 2. This application was dealt with on the 2nd November, 1967, and, as a result, a direction was made, by consent, for a short date of hearing of the Case; such hearing was fixed for the 24th November, 1967.

On the 24th November, 1967, the hearing had to be adjourned until the 5th December, 1967, due to the fact [*707] that counsel for the Applicant had received copies of the Oppositions of Respondents too late, and he had not been, thus, in a position to prepare himself accordingly.

On the 5th December, 1967, the hearing was concluded, but, at the end thereof, the Court directed that Respondent 2 should file and deliver to the other parties, within two weeks, copies of the terms of tenders which were mentioned in the letter of Respondent 2 dated the 17th November, 1966 (exhibit 3); it was, further, directed that if any party desired the hearing to be re-opened, so as to make further submissions in relation to the said terms, then an application for the purpose should be made to the Court within a week after the filing and delivery of such terms; otherwise Judgment would be deemed to have been reserved.

Copies of the terms of tenders were duly filed and delivered on the 12th December, 1967 (see exhibit 6); and no application for re-opening of the hearing was made by any party within a week thereafter. Then, while the Case was under consideration with a view to Judgment being delivered, counsel for the Applicant, filed and delivered to other counsel, on the 15th January, 1968, a “notice” containing written observations regarding the said terms of tenders. He was informed, by letter of the Chief Registrar dated the 17th January, 1968, that the proper course was to apply for leave to re-open the hearing of the Case in order to raise the points set out in his said "notice".

Counsel for the Applicant applied accordingly on the 17th February, 1968. [*708]

His application was dealt with on the 2nd March, 1968, and the Case was fixed, by consent, for further hearing on the 20th March, 1968; on that date counsel for Respondent 2 did not appear, hut counsel for the Applicant and counsel for Respondent 1 addressed the Court further on the matter, and, then, Judgment was reserved.

While the Judgment was under preparation, counsel for the Applicant applied ex parte, on the 26th April, 1968, for a Provisional Order allowing him to export another potato crop of his directly and without complying with the Board's requirements. In view of the stage of the proceedings at which the Applicant took the step in question he was required to apply by summons; he did so on the 2nd May, 1968, and his application came up for hearing on the 13th May, 1968. Then, it was adjourned for mention to the 23rd May, 1968, and later to the 11th and the 13th June, 1968, in view of the possibility having arisen, through discussions among counsel, of arranging the whole Case out of Court; eventually, no such arrangement was arrived at, the application for a Provisional Order was withdrawn, and the delivery of this Judgment was fixed for today.

The main submission of counsel for the Applicant has been that sections

47 to 49 of Law 59/64, and the consequent arrangements made by Respondent 2, are unconstitutional as being contrary to Articles 23, 25 and 26 of the Constitution.

It is convenient to deal, first, with the constitutionality of the said provisions of Law 59/64; they read as follows: - [*709]

"47. Από της ενάρξεως της ισχύος του παρόντος Νόμου, άνευ της

εγγράφου αδείας του Συμβουλίου απαγορεύεται η υπό των παραγωγών πώλησις, εμπορία

ή άλλως πως διάθεσις πατατών, ή οιουδήποτε χαρακτη­ρισμού ή ποσότητος αυτών,

προοριζομένων δι' εξαγωγήν.

48.(1) Από της ενάρξεως της ισχύος του παρόντος Νόμου απαγορεύεται η

εξαγωγή πατατών ή οιουδήποτε χαρακτηρισμού ή ποσότητος αυτών εξαιρέσει -

(α) πατατών

εφ' ων το δικαίωμα κυριότητος περι­ήλθε τω Συμβουλίω δυνάμει των διατάξεων του

άρθρου 49˙ ή

(β)

πατατών η εξαγωγή των οποίων έτυχε της προς τούτο δεούσης αδείας του

Συμβουλίου.

(2)

Από της ενάρξεως της ισχύος του παρόντος Νόμου απαγορεύεται η εξαγωγή πατατών ή

οιουδήποτε χαρακτηρισμού ή ποσότητος αυτών υπό παντός προσώπου εξαιρέσει -

(α)

προσηκόντως διωρισμένου πράκτορος ενεργούντος δια λογαριασμόν του

Συμβουλίου˙ ή

(β)

παντός ετέρου προσηκόντως εξουσιοδοτημένου υπό του Συμβουλίου προσώπου.

49. Επί τω τέλει ενασκήσεως των δυνάμει του παρόντος Νόμου αρμοδιοτήτων

του Συμβουλίου, το δικαίωμα κυριότητος επί πασών των πατατών άτινας το

Συμβούλιον απεδέχθη εξ οιουδήποτε παρα­γωγού προς πώλησιν ή διάθεσιν αυτών δια λογαριασμόν του

τελευταίου, περιέρχεται τω Συμβουλίω δυνάμει του παρόντος άρθρου και άνευ

ετέρας μεταβιβαστικής πράξεως".

[*710]

“(47. From and after the day of the coming into operation of this Law no producer shall, without the written authority of the Board, sell, market or otherwise dispose of potatoes, or any description or quantity thereof, intended for export.”

“48. (1) Prom and after the day of the coming into operation of this Law no potatoes, or any description or quantity thereof, shall he exported other than -

“(a) potatoes in which the proprietary rights have vested in the Board by virtue of the provisions of section 49; or”

“(b) potatoes the export of which has been duly authorized by the Board.”

“(2) From and after the day of the coming into operation of this Law no person shall export any potatoes, or any description or quantity thereof, except -

“(a) a duly appointed agent acting on behalf of the Board; or

“(b) any person duly authorized by the Board.

“49. Per the purposes of the exercise of the functions of the Board under this Law, the proprietary rights in all potatoes accepted by the Board from any producer for sale or other disposal on his behalf shall vest in the Board by virtue of this section and without any further act of transfer).” [*711]

In examining the constitutionality of these sections this Court has to be guided by the principles expounded in the case of The Board for the Registration of Architects and Civil Engineers v. Kvriakides (1966, 6 J.S.C. 880). It was laid down therein (at p. 886), inter alia, that the unconstitutionality of an enactment B has to be established beyond reasonable doubt, before this Court will interfere with its validity (see, also, The Attorney-General v. Imbrahim, 1964, 3 J.S.C. 1, at p. 55).

I can find nothing in sections 47 and 48 of Law 59/64 which conflicts with Article 23 of the Constitution. It is true that these provisions do interfere with the use of property, namely, crops of potatoes produced by a producer, but in doing so they only impose - in relation solely to the export trade of potatoes - restrictions and limitations which are absolutely necessary for, inter alia, the protection of the rights of others, in the sense of Article 23(3) of the Constitution; the “others" being D the producers of potatoes all over Cyprus. A mere glance at section 26 of Law 59/64, which lays down the functions of Respondent 2, as well as at the proposals for legislation which have led to the enactment of Law 59/64 (see exhibit 5), leaves no room for doubt on this point.

Nor can I find, in the provisions of section 49 of Law 59/64, anything contrary to Article 23 of the Constitution. This section does not have at all the effect of compulsorily acquiring from any producer his crop of potatoes in a manner inconsistent with Article 23; the crop of potatoes of a producer does not become automatically, by law, the property of Respondent 2, but [*712] ownership thereof vests in Respondent 2 only after the producer concerned has had his crop accepted by Respondent 2 - obviously after a voluntary offer of his - for sale or other disposal on his behalf by Respondent 2.

Looking, next, at Article 25 of the Constitution I am not in the least satisfied that sections 47 to 49 of Law 59/64 offend against this Article:

In The District Officer Nicosia and Ioannides (3 R.S.C.C., 107, at p. 109) it was held that "Article 25 safeguards the right to practise any profession or to carry on any occupation, trade or business subject to such formalities, conditions or restrictions as provided for therein. What is guarded against are infringements in the exercise of this right as such; but controls in respect of objects which might be necessary for the exercise of such right are not excluded by this Article". Also, in The Police and Liveras (3 R.S.C.C. 65, at p. 67) it was held that Article 25 "only guards against direct, and not indirect, interference with the right safeguarded there under".

In the present Case, the relevant legislative provisions do not interfere directly with the right, as such, of the Applicant to carry on the business of exporter; he is merely prevented from using his crops of potatoes for export purposes unless he complies with the requirements laid down as a result of such provisions.

But even if I were to take the view that there is, indeed, direct interference with his right to carry on [*713] the business of exporter, I would have no difficulty to find that the provisions in question interfere with such right in a manner which is necessary in, inter alia, the public interest, in the sense of paragraph 2 of Article 25, and that they are not unconstitutional.

Regarding Article 26 of the Constitution - which was mentioned by counsel for the Applicant in a cursory way only - all I need say is that on the-basis of any one of the views, regarding the application of Article 26, which were expressed in Chimonides v. Manglis (1967 6 J.S.C. 753) sections 47 to 49 of Law 59/64 cannot be held to be unconstitutional.

What I have said already in relation to the constitutionality of the said sections 47 to 49 applies with equal force to the arrangements made by Respondent 2 in respect of the export of potatoes to the United Kingdom - in the exercise of its powers under, inter alia, section 28 of Law 59/64 - and, therefore, I cannot hold, as at present advised, that I have been satisfied by the Applicant, on whom the onus lay, that such arrangements, to the extent to which they are complained of by him, are unconstitutional as contravening Articles 23, 25 or 26.

This Case has been scarcely argued before me on the issue of whether or not, on this particular occasion, the refusal of Respondent 2 to allow the Applicant to export directly his own potatoes was taken in abuse or excess of powers.

It is obvious from the contents of the letter exhibit 3 that such refusal is due to the fact that the [*714] course sought to be followed by the Applicant would be contrary to the generally applicable arrangements in relation to exports of potatoes to the United Kingdom, and as the Applicant did not attempt to show at all, in his relevant application to Respondent 2, that there existed special circumstances entitling him to different treatment, I fail to see how Respondent 2 could be said to have acted in abuse or excess of powers. It is up to the Applicant to show - if it applies again in future to Respondent 2 for any exceptional facility - that he has a case meriting, in any respect, special treatment, in a manner within the competence of Respondent 2; in the meantime I express no opinion, one way or the other, on the point.

In the circumstances, I have no difficulty in dismissing this recourse. There shall be, however, no order as to costs, in view of the fact that this is the first case of such a nature and the Applicant was entitled to bring his grievance before the Court for determination; but, as the Applicant has caused costs to be incurred by the other parties, through delay on his own part in taking proper steps for the re-opening of the proceedings in time, after exhibit 6 was filed, I find that it is only fair to discharge the order for costs made against the Respondents on the 2hth November, 1967, because of the fact that the hearing on that date had to be adjourned in view of their Oppositions having reached counsel for the Applicant belatedly.

Application dismissed.

Order for costs as aforesaid.