Court holds traffic regulation requiring stopping is not unconstitutional under free movement or liberty rights.

[*103] 1961 November 10

(forsthoff, p., triantafyllides and munir, jj.)

(October 27, November 10, 1961)

IN THE MATTER OF ARTICLE 144 OF THE CONSTITUTION,

AND

IN THE MATTER OF A REFERENCE BY THE DISTRICT COURT OF NICOSIA, SITTING AT MORPHOU, IN CRIMINAL CASE No. 1256/61, MORPHOU GENDARMERIE and CHRISTAKIS MICHAEL OF MORPHOU.

(Case No. 108/61)

Fundamental Rights and Liberties — Right of free movement — Meaning of “to move freely” — Deprivation of liberty — Part 11 of the Constitution, Arts. 11, 13.1 and 34.

Motor Vehicles Regulations, 1959† — Regulation 58(1) (p) — Necessity to control traffic.

Words & phrases — “To move freely”, meaning of, Art. 13.1

At the hearing of a criminal case instituted before the District Court of Nicosia, sitting at Morphou, by the Morphou Gendarmerie, against a certain Christakis Michael of Morphou, for allegedly failing to stop his motor car, when requested to do so by a police sergeant, contrary to the provisions of regulations 58(1) (p) and 66 of the Motor Vehicles Regulations 1959, and section 13 of the Motor Vehicles and Road Traffic Law, Cap. 332, as amended by section 3 of Law 25 of 1959, counsel for the accused [*104] raised a question of alleged unconstitutionality of regulation 58(l)(p) of the Motor Vehicles Regulations, 1959, which was referred to this Court, in accordance with Article 144 of the Constitution, as follows:-

“The decision of the Supreme Constitutional Court is sought on whether Regulation 58(1)(p) of the Motor Car Regulations 1959, under which the accused is charged is contrary to the provisions of Article 11 and Article 13.1 of the Constitution”.

Held : (a) Art. 13.1, which safeguards the right of free movement throughout the territory of the Republic could not, in any sense, be interpreted as rendering unconstitutional laws, or regulations reasonably necessary to ensure that the right “to move freely” should be exercised reasonably (N. B. the provisions of Art. 34) ;

(b) the words “to move freely”, in Art. 13.1 did not mean to move freely continuously without reasonably necessary interruptions ;

(c) regulation 58(l)(p) of the Motor Vehicles Regulations, 1959, was not contrary to, or inconsistent with, the provisions of Arts. 11 and 13.1. However, if the said regulation was resorted to or used in a manner inconsistent with its object, or not within the ambit of Art. 11.2, the person affected would be entitled to redress.

A. Pantelides for the accused.

P. N. Paschalis, Counsel of the Republic, for the Republic.

Cur. adv. vult.

November, 10. The Decision of the Court was read by:

FORSTHOFF, P. : The Court declares—

The provisions of regulation 58(l)(p) of the Motor Car Regulations, 1959, are not unconstitutional as being contrary to or inconsistent with Article 11 or paragraph 1 of Article 13 of the Constitution.

This is a reference from the District Court of Nicosia, sitting at Morphou, of a question of alleged unconstitutionality which was raised under paragraph 1 of Article 144 of the Constitution during the hearing of Criminal case No. 1256/61. The question as referred to this Court on the 20th September, 1961, is as follows:-

“The decision of the Supreme Constitutional Court is sought on whether Regulation 58(l)(p) of the Motor Car Regulations 1959, under which the accused is charged is contrary to the provisions of Article 11 and Article 13(1) of the Constitution”.

The reference was received in the Registry of this Court on the 26th September, 1961, and the Case was heard on the 27th October, 1961.[*105]

Regulation 58(1)(p) of the Motor Vehicles Regulations, 1959, reads as follows:-

“58- (1). Any person driving or having the charge or control of a motor vehicle on any road, shall –

…………………………….……

(p) on the request of any police officer in uniform, cause the motor vehicle to stop and to remain stationary until such officer allows him to proceed and on the request of any person having charge of any animal or vehicle or if such person shall put up his hand as a signal for the purpose, cause the motor vehicle to slow down ;

……………………………………………………”

It is clear from the whole context of regulation 58(1)(p) as well as from the remainder of regulation 58, that it is a provision designed merely to render the movement of traffic orderly and safer for everybody concerned by enabling, inter alia, a police officer in uniform to control the flow of traffic in the same way as traffic lights do.

The Court is of the opinion that paragraph 1 of Article 13 of the Constitution which safeguards the right “to move freely throughout the territory of the Republic” cannot in any sense be interpreted as rendering unconstitutional laws or regulations reasonably necessary in every modern society in order to ensure that such right “to move freely” shall be exercised reasonably, with safety and moreover with due regard for the enjoyment by others of the same right to move freely and of the right to life and corporal integrity. It is rather significant to note in this respect that Article 34 of the Constitution provides, inter alia, that nothing in Part II of the Constitution, dealing with Fundamental Rights and Liberties, may be interpreted as implying for any person any right to engage in any activity or perform any act aimed at the undermining or destruction of any of the rights and liberties set forth in such Part.

Furthermore, to “move freely” does not mean to move freely continuously without reasonably necessary interruptions.

For the above reasons the Court has come to the conclusion that a traffic regulation such as regulation 58(1)(p) is not contrary to or inconsistent with the provisions of paragraph 1 of Article 13.

The Court will now consider to what extent, if any, the said regulation 58(1)(p) is contrary to or inconsistent with Article 11 of the Constitution which safeguards the right of liberty and security of person and provides that no person [*106] shall be deprived of his liberty except in certain specific cases when and as provided by law.

In the opinion of the Court stopping a motorist temporarily under the provisions of regulation 58(l)(p) would in most cases be of so transient a nature as not to amount at all to deprivation of liberty in the sense of Article 11.

In the very few instances when the application of the provisions of regulation 58(1)(p) might conceivably result in a stopping of such duration so as to amount technically to a “detention” (it certainly would never amount to an “arrest”) then the matter would come under sub-paragraph (c) of paragraph 2 of Article 11 in the sense that such “detention” would be reasonably considered necessary to prevent the commission of a motoring offence.

It need hardly be stressed that if regulation 58(1)(p) is resorted to or used in a manner inconsistent with its object or not within the ambit of paragraph 2 of Article 11 then a person affected would be entitled to appropriate redress.

For the above reasons, the said Regulation 58(l)(p) is not contrary to or inconsistent with Article 11 of the Constitution.

The Court is of the opinion that the alleged question of unconstitutionality in this Case comes dangerously close to being described as frivolous and it takes this opportunity of emphasizing that counsel resorting to the procedure under Article 144 should do so with full sense of their responsibility in the administration of justice and should not abuse such procedure otherwise this Court will have to take the necessary steps to prevent any such abuse.