Court declares Motor Transport Regulation Law 1982 s.14 unconstitutional as it is not absolutely necessary to protect others' rights.

[*352] 1984 Jan.7

( HADJIHAMBIS, D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Limassol Police,

v.

Alexandros Demosthenous,

Accused,

(Case No. 16680/83)

Constitutional Law - Right to property - Restrictions or limitations absolutely necessary for the protection of the rights of others - Constitution, Art.23.3 - Distinction between rights and interests in the wider sense - The Motor Transport Regulation Law 1982, section 14 - Private Motor Cars - Free systematic carriage of persons not being close relatives or employees of the owner or of the driver therefor - The part of the said section, which relates to and prohibits such carriage, protects interests but not rights of others - It is, therefore, unconstitutional - Even if it is accepted that it protects the rights of others, the relevant restriction or limitation is not absolutely necessary for such protection and is consequently in conflict with Art.23(1) (2) (3) of the Constitution.

Constitutional Law - Constitutionality of Statutes - Examination of - Principles applicable.

The Motor Transport Regulation Law 1982 - Sections 5,14 and 23.

Inspector Y. Panayiotou, for the Prosecution.

M. Anastasiou, for Accused.

JUDGMENT

The judgment of the Court was delivered by:

HADJIHAMBIS, D.J.: The Accused is charged under s.14 of the Motor Transport Regulation Law 1982 which provides: [*353]

"(1) Απαγορεύεται η υπό

παντός προσώπου δι' ιδιωτικού μηχανοκινήτου οχήματος μεταφορά επιβατών επί μισθώσει η

επ'αμοιβή ή η συστηματική μεταφορά προσώπων μη στενών συγγενών ή υπαλλήλων του ιδιοκτήτου ή οδηγού αυτού………………."

S.21(1) of the said Law, under which the Accused is also charged, further provides:-

"(1) Πας όστις χρησιμοποιεί οιονδήποτε μηχανοκίνητον όχημα ή προκαλεί,

επιτρέπει η ανέχεται την χρήσιν αυτου κατα παράβασιν του παρόντος Νόμου, ή των

δυνάμει αυτού εκδιδομένων Κανονισμών, η κατέχων άδειαν οδικής χρήσεως

παραβαίνει η παραλείπει να συμμορφωθή προς οιονδήποτε όρον τεθέντα εν αυτή, είναι ένοχος αδικήματος και

εν περιπτώσει καταδίκης υπό- κειται εις φυλάκισιν δια χρονικόν διάστημα μη

υπερβαίνον τους εξ μήνας ή εις χρηματικήν ποινήν μη υπερβαίνουσαν τας εκατον

λίρας ή εις αμφοτέρας τας ποινάς της φυλακίσεως και της χρηματικής

ποινής."

S.14 thus seems to involve two offences in relation to private cars, one the carriage of passengers for hire or reward and the other the systematic carriage of persons not being close relatives or employees of the owner or driver thereof, the Accused being charged for the second offence. [*354]

The facts of the case are simple and not in dispute, P.W.1, P. Christodoulou, a Police Constable stationed at the Accused’s village, Kalo Horio, testified that on a number of occasions he saw the Accused carrying a girl called Vera from the village to Limassol in his private car registration number GZ 248. The girl was not a relative of the

Accused though their families are connected by marriage (“συμπεθθερκό”). He also testified that there are buses leaving the village for

Limassol at 6 a.m. and 6.30 a.m. and that the police carried out a systematic check following complaints from bus operators that villagers were giving lifts in their private cars to other villagers. Evidence was also given by P.W.2, A. Savvides, the Police Sergeant in charge of the Kalo Horio Police Station, to the effect that there were complaints by the bus owners and that the Accused was reported on a number of occasions for carrying the girl. The Accused himself elected to give evidence on oath saying that he came to Limassol every day for his work in his private car and carried with him his daughter and the girl Vera to their work, leaving the village between 6 a.m. and 7 a.m. Vera was a very close friend of his daughter, whom she had helped a lot, and their families were connected by marriage (“συμπεθθερκό”) and consequently he would not conceive taking money from her.

I accept the evidence given on each side, which is not in fact either conflicting or in dispute and, on the basis of it, would have thought that the Accused was guilty [*355] as charged for the carriage seems to be a systematic carriage by private car of a person who was not a close relative or employee of the owner and driver. However, learned counsel for the Accused rested his defence on the argument that s.14 is unconstitutional in that it violates Article 23(1) of the Constitution which provides:

“1.Every person, alone or jointly with others has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such right.”

Learned counsel’s argument was that the restriction or limitation placed by s.14 upon the use and enjoyment of the Accused’s property right in his car is in conflict with the recognition accorded to such right by Article 23(1) and referred to Article 23(2) which provides:

“2.No deprivation or restriction or limitation of any such right shall be made except as provided in this Article.”

Article 23(3) further provides:

“3.Restrictions or limitations which are absolutely necessary in the interest of the public safety or the public health or the public morals or the town and country planning or the development and utilization of any property to the [*356] promotion of the public benefit or for the protection of the rights of others may be imposed by law on the exercise of such right.”

I also refer to Article 23(7) which provides:

“7. Nothing in paragraphs 3 and

4 of this Article contained shall affect the provisions of any law made for the purpose of levying execution in respect of any tax or penalty, executing any judgment, enforcing any contractual obligation or for the prevention of danger to life or property.”

Learned counsel submitted that the restriction or limitation under s.14 does not come under the restrictions or limitations which are absolutely necessary in the cases provided under Article 23(3).

The Prosecuting Officer, on his part, argued that the restriction or limitation in question does qualify under Article 23(3) being for the protection of the rights of others or for the public benefit.

As to points of cons itutionality, I quote from my judgment in Limassol Police v. Stelios A. Kolios, Cr. Case No. 19600/82 dated 14/5/1983 at p.9:

“Following the decision of the

Supreme Court in Attorney-General of the Republic v. Mustafa Ibrahim and Others (1964) C.L.R. 195, the [*357] procedure for reference of

issues of constitutionality to the Supreme Constitutional Court under Article 144 of the Constitution is no longer necessary or applicable and issues of constitutionality are treated as issues of law in the proceedings to be determined by the trial court. In approaching an issue of constitutionality, the Court should, in the first place, be guided by the principle (see: Miliotis v.Hussein (1963) 2 C.L.R. 287, Board for the Registration of Architects and Civil Engineers v. Kyriakides (1966) 3 C.L.R.640) that it should only deal with the issue if and in so far as it is material to the determination of any matter at issue in the case.

“……………………………………………………………………………………………….”

In dealing with the issue of constitutionality thus raised, I should emphasise the principle expressed by the presumption of constitutionality to the effect that every law is presumed to be constitutional unless the contrary is proved beyond all reasonable doubt (See: The Board for the Registration of Architects and Civil Engineers v. Kyriakides (1966) 3 C.L.R. 640, Demetriades v. Republic (1971) 3 C.L.R. 218, Hoppi v. Republic

(1972) 3 C.L.R . 269, PoIice v. Ekdotiki Eteria “Inomeni Dimosiographi Dias Ltd.” (1982) 2 C.L.R. 63). As Josephides, J., delivering the judgment of the Court in The Board for [*358] the Registration of Architects and Civil Engineers v. Kyriakides said at p. 654, summarising the effect of the American authorities:

“A rule of precautionary nature is that an act of legislation will be declared void except in a very clear case, or unless the act is unconstitutional beyond all reasonable doubt…. Sometimes this rule is expressed in another way, in the formula that an act of Congress or a State Legislature is presumed to be constitutional until proved otherwise ‘beyond all reasonable doubt…’”

And at p.655:

“It is a cardinal principle that if at all possible the Courts will construe the statute so as to bring it within the law of the Constitution.”

This principle was recently analysed and restated by Pikis, J., in Police_v. Ekdotiki Eteria “Inomeni Dimosiographi Dias Ltd.” at pp.77-78:

“Every law is presumed to be constitutional unless the contrary is proved, beyond any reasonable doubt... Any other rule would diminish the sovereignty of the legislature over the field of legislation and weaken the constitutional principle of separation of [*359] powers essential for the vindication of the rule of law. The judges are not the overlords of legislative action. They will not examine a statute minutely but broadly, starting from the premise that the House of Representatives are the arbiters of legislation. Only where they transgress irretrievably the constitutional limitations to their legislative power is the Court entitled to intervene. A safe assumption in examining the constitutionality of a law, is that the legislature intended to legislate within the framework of the Constitution. In deciding upon the constitutionality of a statute it is axiomatic that if susceptible to an interpretation reconcilable with the provisions of the Constitution, a beneficial construction must be adopted saving the enactment. A beneficial construction may be adopted provided this can be achieved without thwarting the language of the Act ... “.

See also: Apostlides and others v. The Republic (1982) 3 C.L.R. 928.

I then went on carrying from p.11 to examine the specific issues of constitutionality raised in the case and I had this to say at p.11: [*360]

I should in the first place,

observe that, according to the decision of the Supreme Constitutional Court in The District Officer of Famagusta v. Yiacoup Naim (1961) 2 R.S.C.C. 24, issues of

constitutionality are decided not by reference to the facts of the case in question but in abstracto.

As Forsthoff, P., giving the judgment of the Court put it at p.26:

‘Under Article 144 this Court does not take ‘cognisance of the facts of any particular ‘case in order to decide the unconstitutionality of a law in relation theretor, but ‘decides on such question of unconstitutionality in abstracto.’ “

This was reiterated by Pikis, J., in Apostolides v. The Republic (1982) 3 C.L.R. 928, where he said, at p.938:

“Questions of constitutionality are decided in abstracto. Rarely is evidence admissible and then, only if necessary, to illuminate the implication of the law, otherwise obscure.”

This means that , in determining the constitutionality of s.6(4), I should have reference not necessarily to the facts of the case before me but to any facts, raising the same issue, to which s.6(4) might be applicable. [*361]

It is true that in Costa v. Republic (1982) 2 C.L.R. 120 A. Loizou, J., giving the judgment of the Court, consisting of himself and Savvides J. and Stylianides, J., said, at p.126:

“The examination of the constitutionality of the law or the construction and application of an international convention cannot be made in abstracto but in relation to the facts of the particular case before the Court.”

There does not, however, appear to be any real conflict between these views. As I understand it, looking at the dictum of A. Loizou, J., in its context, His Honour was stressing the point that the constitutionality of the law in question should be examined in relation to the factual reference of the constitutional provision in question . Since His Honour was considering the right to respect for one’s private life under Article 15 of the Constitution, it was only natural that the issue of constitutionality should be considered not in abstracto but in relation to the extent of private life. Hence his reference immediately after the above dictum, to the fact that the acts in question in the case before him were not committed in private with the result that they were outside the ambit of the constitutional right. This would in no way seem to be inconsistent with the principle in The District Officer of Famagusta v. Yiacoup Naim and [*362] Apostolides v. the Republic that the constitutionality of a law should be decided by reference not to the facts of the case before the Court but by reference to any facts coming within the ambit of the constitutional provision and the provisions of the law in question.

One point raised I could, I believe, dispose of straight away, that is, the argument of Prosecuting Officer that the restriction or limitation in question qualifies under Article 23(3) as being for the Public benefit. I would observe that article 23.3 refers to restrictions or limitations which are absolutely necessary in the interest of the development and utilisation of property to the promotion of the public interest, and I do not believe there is in the instant case any question of development or utilisation of the property in question, but simply a restriction or limitation as to use (let alone whether it is to the promotion of the public benefit or rather for the protection of private interest). It is noteworthy in this respect that in Poullos.v. The Police (1964) C.L.R. 30, where the prohibition of the use of premises for the promotion of lottery was held consistent with Article 23, the decision Was based on the ground that the restriction in question was in the interests of the public morals and not in the interest of the development and utlisation of property to the promotion of the public benefit. This view is particularly supported by Constantinou v. The Republic

(1977) 3 C.L.R. 400 where A. Loizou, J., in holding that s.6(B)(1)(b) of the Betting Houses, Gaming [*363] Houses and Gambling Prevention Law Cap.151 (as amended), which prohibited the importation or manufacture of “flippers”, did not offend against Articles 23 and 25 of the Constitution, distinguished between the two by holding that the restriction was absolutely necessary in the interests of public morals under both Articles and in the interest of public order and in the public interest only under Article 25.

The substantial question which I have to decide is whether the restriction or limitation in question is absolutely necessary for the protection of the rights of others.

As to this, I have not been able to trace any authority directly on the point. In Evlogimenos & Others v. The Republic (1961) 2 R.S.C.C. 139 the

Supreme Constitutional Court dealing with s.24 of the Immovable Property (Tenure Registration and Valuation) Law Cap.224, which gave a right of pre-emption over land to the owner of trees standing thereon, hold that s.24 was not inconsistent with Article 23. As Forsthoff, P., giving the judgment of the Court, put it at page 142:

“...the Court, in examining the provisions of Article 23 of the Constitution has proceeded on the well-settled principle that the right to property safeguarded by an Article such as this is not a right in abstracto but a right as defined and regulated by the law relating to civil law rights [*364] in property and the word ‘property’ in paragraph 1 of Article 23 has to be understood and interpreted in this sense.

“Paragraph 2 of Article 23, in the opinion of the Court, protects the aforesaid right to property from deprivation or restriction or limitation effected in the interests of the State or public bodies and not merely under a law regulating civil law rights in property. The object of the above-mentioned sections of CAP.224, and of section

24 in particular, which relates strictly to the regulation of civil law rights in property does not and cannot conflict with the provisions of Article 23, and, therefore, section 24 cannot be unconstitutional on that ground.”

This principle was followed in Chimonides v. Manglis (1967) 1 C.L.R. 125 in relation to the rent control provision of the Depressed Tenants Relief Law 1965 and in Re Ali Ratip (1962) 3 R.S.C.C. 102 in relation to the concept of guardianship of prodigals contained in the Guardianship of Infants and Prodigals Law Cap. 277. In Re Ali Ratip Forsthoff, P., giving the judgment of the Supreme Constitutional Court, referred to the principle of Evlogimenos and Others v. The Republic that the right to property under Article 23 is subject to definition and [*365] and regulation by the civil law as having equal application to the management of property. As he put it, at pp.104-105:

“The Constitution in safeguarding the right to ‘acquire’, ‘own’, ‘possess’, ‘enjoy’ or ‘dispose of’ property does not protect the management of property in abstracto but subject to the rules embodied in the civil law.

The law of Cyprus, in accordance with the principles followed in all civilized countries, lays down that certain persons are not, by virtue of incapacity such as mental derangement or prodigality, capable of entering into certain transactions. These are matters of civil law, and Article 23 cannot be understood as being intended to interfere therewith.”

The principle of the authorities reviewed, undisputed thought it may be, does not, however, appear to conclude the issue in the present case, in which the restriction or limitation on the use and enjoyment of the right of property in question concerns not the definition and regulation of civil law rights in property inter partes or the property management rules of the civil law (so as to be outside the ambit of Article 23 altogether) [*366] but the protection of the interests of bus and taxi operators which can only be examined in the context of Article 23. Indeed, it was in the context of Article 23 that Regulation 8(2)(b)(ii) of the Motor

Vehicles and Road Traffic Regulations 1973 was considered in The Group of Five Bus Tours Ltd et al v. The Republic (1983) 3 C.L.R. 793. It had there been argued

that the cancellation of registration of certain buses under the said regulation, which provided for the cancellation of registration of vehicles which had been rendered permanently unserviceable, was inconsistent with Article 23. A. Loizou, J., rejected this argument, holding that the case came within the restrictions or limitations which, under Article 23(3), are absolutely necessary in the interest of the public safety or for the protection of the rights of others, in so far as, presumably, public safety and the right to safety of those using the buses and other road-users rendered the cancellation of registration of unroadworthy vehicles absolutely necessary. As His Honour put it at p.808:

“...these vehicles were imported and sought to be registered and operated under the provisions of the Motor Vehicles and Road Traffic Law and the Regulations made thereunder, that regulate matters relating to transport and they impose restrictions for the public safety and for the protection of the rights of others.” [*367]

It is true that His Honour proceeded to refer also to the principle in Evlogimenos. et al v. The Republic,

but that seems to have been more by way of general reference than reference to the case in hand for His Honour, having considered the

matter in the context of Article 23(3) could not at the same time have intended to rest it on the principle of Evlogimenos et al v. The Republic which is to the effect that the regulation of civil law rights in property is outside the ambit of Article 23.

Reverting to the question whether the restriction or limitation in question is absolutely necessary for the protection of the rights of others, I should, in the first place, observe that there would seem to be a distinction between rights and interests in the wider sense. Now the bus operators, whose complaints led to this case, clearly felt that their business interests might be affected if private car owners gave free lifts to persons who might otherwise have used their buses instead. I doubt, however, whether the bus operators could be said to have a ‘right’ such prospective customers in the sense of Article 23(3) in the same way that, e.g. road users can be said to have a right to road safety as far as others are concerned. In so far as they are licensed, bus operators have the right to operate their buses in accordance with the terms of their licence, but surely [*368] all that that licence gives them is a right to offer their services to the public, not a right to demand that the public use their services. A member of the public who gets a free lift in a friend’s car cannot be said to violate any right of the bus operators any more or any less than a member of the public who uses his own car or, to refer to the exceptions of s.14 itself, gets a free lift in a close relative’s or in his employer’s car. If anything, close relatives and employees getting such free lifts are likely to be more numerous than others. It should further be remembered that what falls for consideration in the instant case is the free carriage of persons in private cars and not their carriage for hire or reward, in which case different consideration might apply. Thus, no question of any competition between professional operators and private car owners seem to arise. Indeed, I would point out that such carriage seems to be entirely outside the ambit of s.5 of the Law, which provides:

"(1) Ουδέν μηχανοκίνητον όχημα θα χρησιμοποιηται δι

'οιανδήποτε εκ των εν τω παρόντι άρθρω αναφερομένων οδικών χρήσεων, εκτός εάν είναι εφωδιασμένον δι'αδείας δυνάμει των διατάξεων του παρόντος Νόμου και μόνον υπό

τους εν τη τοιαύτη αδεία διαλαμβανόμενους όρους………………….

(6) Αι άδειαι οδικής χρήσεως θα παρέχωνται δια [*369] μιαν εκ των ακολούθων οδικών χρήσεων:

(α) Δια μεταφοράν επιβατών επι κομίστρω κατ' επιβάτην

(β) δια μεταφοράν επιβατών επι μισθώσει·

(γ) δια μεταφοράν επιβατών συμβάσει·

(δ) δι' εκμισθούμενα οχήματα άνευ οδηγού·

(ε) δι' ιδιωτικά λεωφορεία·

(στ)δια την περιοδείαν τουριστικών ομάδων και μεταφοράν ομάδων επιβατών εις εκδρομάς καθωρισμένου προορισμού·

(ξ) δια μεταφοράν φορτίου·

(η) δια διεθνείς οδικάς μεταφοράς."

It would thus seem that the free carriage of persons in private cars, for which no road use licence is provided under s.5, has not been considered sufficiently related to the purposes of the Law as to be the subject of regulation. Since, unlike the carriage of persons for hire or reward under the first part of s.14, the free carriage of persons in private cars under the second part of s.14 is not one of the road uses to which a car may be put under s.5(6), it would seem hardly to be in any conflict with the policy of the Law - in fact, its prohibition by s.14 is in express conflict with its legality under s.5. [*370]

Consequently, I conclude that the restriction or limitation in question is not one that has reference to, let alone absolutely necessary for, the protection of the rights of others and is, therefore, unconstitutional.

There is a further ground on which I would rest my decision. Even if the restriction or limitation is supposed to be for the protection of the rights of the professional transport operators, it could still have to be established that it was absolutely necessary in that respect. I should point put, in the first place, that s.14 is absolute in its prohibition. Yet many cases can be put in which the prohibition would not be absolutely or even necessary for the protection of these rights. To take this case, the buses in question leave at certain times, 6 a.m. and 6.30 a.m.; in what possible manner can the interests of the bus owners be affected if a person who wants to leave after 6.30 a.m. gets a free lift in a friend’s car at

7 a.m. (as Vera often did), 8 a.m., 9 a.m., 10 a.m.? Yet, if s.14 applies, such carriage would constitute an offence. Further, s.14 is absolute not only in terms of time but also in terms of place. I shall take a case in which no bus service is provided at a particular area or where the bus service provided does not take the passenger where or even close to where he wishes to go again s.14 would be prohibiting a carriage which in no way affected the [*371] interests of professional transport operators. In that context, innumerable fact-situations from every-day life come to mind in which the systematic but free carriage of persons in private cars does not conflict with the interests of professional operators in any way which would make the prohibition of s.14 absolutely necessary in that respect - a mother who takes her son and his next-door friend to school every day, a waiter in a hotel outside town who finishes work at 1 a.m. and gives a lift back to town to a fellow waiter, a father who takes his soldier son back to camp and, with thim, the soldier son of a neighbour who is at the same camp, an estate agent who takes prospective clients in his car to see properties, a man who goes shooting regularly taking with him in his car two friends, just to mention a few cases. In this respect, I would point out the - be it limited - proviso in s.15(1) of the Motor Transport Regulation Law 1964, as amended, (the predecessor of the present Law), that no offence was committed by the free carriage of persons in private cars if the evidence established that at the time of the carriage in question there was no bus carrying out the route in question. The entire absence of any provision in the present Law, means that the complete restriction or limitation under s.14 is not absolutely necessary for the protection of the rights [*372] of others and is, consequently in conflict with Article 23(1)(2)(3).

In the result, the Accused is acquitted and discharged.

£4.50 costs by Republic.

Accused acquitted and discharged.