Supreme Court declares arbitration tribunal unconstitutional due to executive overreach violating separation of powers.

[*159] 1975 February 21

(TRIANTAFYLLIDES, P., STAVRINIDES, L. LOIZOU,

HADJIANASTASSIOU, A. LOIZOU, JJ.)

APPELLATE JURISDICTION

Keramourgia “Aias” Ltd.,

Appellant,

v.

Yiannakis Christoforou,

Respondent.

(Case Stated No. 146).

P. K. Ioannou & Sons Ltd.,

Appellants,

v.

Nicolas Mavrikiou and Another,

Respondents.

(Case Stated No. 150).

Arbitration Tribunal - Setting up of

- Under section 12 of the Annual Holidays with Pay Law, 1967 (Law 8 of 1967) and the Arbitration Tribunal Regulations, 1968 - Unconstitiotunal as offending against the principle of separation of ‘powers - Because of the extent and manner of the involvement of the Executive in the appointment and the laying down of the terms of service of the legally qualified Chairman of the tribunal under the aforesaid section and Regulations.

Separation of Powers - Principle of

- See, also, under “Arbitration Tribunal”.

Constitutional Law - Constitutionality of legislation - Constitutionality of section 12 of the Annual Holidays with Pay Law, 1967 (Law 8 of 1967) and The Arbitration Tribunal Regulations, 1968 - Principle of separation of powers - See, also, under “Arbitration Tribunal”.

E. Emilianides, for the Appellant in C.S.146.

An. Lemis, for the Respondent in C.S. 146.

Fr. Saveriades, for the Appellants in C.S. 150.

N. Pelides and Chr. SoIomia,for the Respondents in C.S.150.

K. Talarides,on behalf of the Attorney-General,as amicus curiae.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES. P.: Those two Cases Stated [*160] were heard together in view of the fact that there was raised the same constitutional issue in relation to both of them.

It has been argued by counsel for the appellants that the Tribunal, from which these Cases Stated have emanated, was not validly set up by virtue of the Annual Holidays with Pay law, 1967 (Law 8/67) and the Regulations made there under (The Arbitration Tribunal Regulations, 1968): it has been submitted, therefore, that such Tribunal was acting without lawful competence when it proceeded to exercise, in relation to the claims of the respondents, the jurisdiction vested in it by means of the Termination of Employment Law, 1967 (Law 24/67); the main contention: of the appellants has been that the way in which the said Tribunal was set up rendered its existence and functioning unconstitutional because of contravention of the separation of powers between the Executive and the Judicial branches of the State.

In dealing with the issue of constitutionality we were assisted not only by counsel for the parties, but, also, by counsel who appeared, on our invitation, on behalf of the Attorney-General of the Republic, as amicus curiae; and there has been unanimity amongst all counsel that the Tribunal in question has been set up in an unconstitutional manner.

One of the matters raised in argument was that of the nature of the Tribunal; all counsel submitted that the Tribunal is a judicial organ and invited the Court to [*161] deal with the issue of constitutionality on that basis. As while considering our judgment we felt (in view, inter alia, of the case of United Engineering

Workers Union v. Devanayagam, (1967) 2 All E.R, 367) that it might be useful to examine whether such Tribunal was an organ of judicial , or of

administrative nature, all counsel were given the opportunity to address us further on this issue, if they so wished, but, eventually, none of them availed himself of this opportunity.

Having given this matter our consideration in the light of the material before us we have decided - as at present advised and in the absence of any sufficiently convincing argument to the contrary - to treat the Tribunal as a judicial organ and to proceed to consider on this basis the relevant issue of constitutionality:

We have reached the conclusion that the extent and manner of the involvement of the Executive branch of the State in the appointment and laying down of the terms of service of the legally qualified Chairman of the Tribunal - under section 12 of Law 8/67 and The Arbitration Tribunal Regulations, 1968 - offends against the principle of the separation of powers, which is the basis of our constitutional structure and finds expression in several provisions of the Constitution (see, inter alia, Paoaphilippou v. The Republic,

1 R.S.C.C. 62, at p. 64, and Police v. Hondrou and Another, 3 R.S.C.C. 82, at p. 86): it follows that the said Tribunal was set up in an unconstitutional manner and it could not, consequently, validly [*162] exercise the jurisdiction vested in it by virtue of section 30 of Law 24/67 thus, its decisions involved in these proceedings are void and of no effect.

In view of the above it is unnecessary to deal with any of the other issues relating to the constitutionality issue.

As, in the meantime, section 12 of Law 8/67 has been repealed by section 3 of the Annual Holidays with Pay (Amendment) Law, 1973 (Law 5/73), and thereby a new section 12 has been put in its place, under which a new Tribunal has been set up, these cases are .remitted, under section 5 of Law 5/73, to the new Tribunal, with our opinion as above expressed.

We have decided not to make any order as to the costs of the proceedings before us.

Appeals allowed.

No order as to costs.