Pavlou v Chief Returning Officer
| Jurisdiction | Chipre |
| Date | 27 January 1987 |
| Court | Supreme Court (Cyprus) |
(Triantafyllides P; Malachtos, Loris, Stylianides, Pikis and Kourris JJ)
Relationship of international law and municipal law Treaties Constitutional provision granting treaties superior force to municipal law Application by municipal courts United Nations Covenant on Civil and Political Rights, 1966 Convention on Discrimination (Employment and Profession), 1958 Whether municipal statute contrary to terms of conventions Inability to take up elected posts under municipal law because of employment
Treaties Application Multilateral treaties Whether requirement of reciprocity applicable Whether self-executing United Nations Covenant on Civil and Political Rights, 1966 Convention on Discrimination (Employment and Profession), 1958
Human rights Right to vote and be elected Protection under the Cyprus Constitution United Nations Covenant on Civil and Political Rights, 1966 Convention on Discrimination (Employment and Profession), 1958 The law of Cyprus
Summary: The facts:The petitioners had been elected to posts as municipal councillors but were unable to take up the offices. The first petitioner, Mr Pavlou, was employed by the Cyprus Broadcasting Corporation. Mr Hjiandreas was a public officer. Under Section 16(2)(b) of the Municipalities Law1 the salaries that they received from these jobs barred them from taking up the posts to which they had been elected. The petitioners claimed that this rule contravened the United Nations Covenant on Civil and Political Rights, 1966 (the Covenant) and the Convention on Discrimination (Employment and Profession), 1958. The petitioners maintained that under Article 169(3) of the Cyprus Constitution,2 the ratification of these treaties granted them superior force to all domestic laws with the exception of the Constitution itself. The petitioners also claimed that the bar to their assumption of office constituted unequal treatment and was
therefore contrary to Article 28 of the Cyprus Constitution.3 Furthermore, they contended that the requirement that they give up their employment in order to take up the posts as municipal councillors was contrary to Article 25 of the Constitution.4Held:The petitions were dismissed.
(1) Section 16(2)(b) did not contravene the United Nations Covenant on Civil and Political Rights or the Convention on Discrimination (pp. 11225).
Per Malachtos J: Article 169(3) of the Constitution was only applicable to treaties which imposed reciprocal obligations upon the parties thereto. The Covenant was not such a treaty. Furthermore the Covenant was not self-executing (pp. 11516).
Per Stylianides J: The requirement of reciprocity did not apply to a multilateral convention of this nature. The Covenant was self-executing because its provisions could be applied by the courts and the executive organs of State (pp. 11920).
(2) Section 16(2)(b) was not contrary to Article 28 of the Constitution. Differentiation and classification were valid with regard to the nature of the office of municipal councillor (pp. 11718 and 1234).
(3) Article 25 of the Constitution was not contravened. Article 25 only related to direct interference with the right to vote and the right to be elected. The requirement that the petitioners relinquish their employment before taking up the posts constituted only indirect interference in those rights (pp. 112 and 11821).
The following is the text of the opinions delivered in the Supreme Court:
TRIANTAFYLLIDES P.: These two election petitions were heard together in view of their practically identical nature and they are, therefore, being determined both by this judgment.
The petitioners were candidates for the office of Municipal Councillor at the Municipal Elections held on the 25th May 1986.
The petitioner in petition 3/86 has been at all material times an employee of the Cyprus Broadcasting Corporation and was elected as Municipal Councillor of the Municipality of Nicosia.
The petitioner in petition 4/86 has been at all material times a public officer and was elected as Municipal Councillor of the Municipality of Aglantzia.
Both petitioners were not allowed to take up the office of Municipal Councillor because of the provisions of section 16(2)(b) of the Municipalities Law, 1985 (Law 111/85), as amended, in particular, by section 6 of the Municipalities (Amendment) (No. 3) Law, 1986 (Law 25/86).
These legislative provisions did not prevent the petitioners from being candidates for election as Municipal councillors but prevented them from taking up the office of Municipal Councillor to which they have been elected since both of them receive salaries in respect of their aforementioned employments. It has been submitted by counsel for the petitioners that the aforesaid legislative provisions result in unequal treatment of the petitioners contrary to Article 28 of the Constitution; and counsel referred us, in this respect, to Mikrommatis v. The Republic, 2 R.S.C.C. 125, 131, and The Republic v. ArakianUNK, (1972) 3 C.L.R. 294, 298301.
Counsel for the petitioners submitted, also, that there is being infringed, because of application of the legislation in question, Article 25 of the Constitution, in that the petitioners are being forced to abandon their employment in order to take up the office of Municipal Councillor; and, also, that there is violated Article 25 of the United Nations Covenant of Civil and Political Rights of 1966, ratified by the Republic of Cyprus by the International Covenants (Economic, Social and Political Rights, and Civil and Political Rights) (Ratification) Law, 1969 (Law 14/69).
Furthermore, counsel for the petitioners contended that there is being violated the Convention on Discrimination (Employment and Profession) No. 111/58, which safeguards the right to work and which was ratified by the Convention on Discrimination (Employment and Profession) No. 111/58 (Ratification) Law, 1968 (Law 3/68).
Counsel for the petitioners conceded that in accordance with well established principles of constitutional law he had to satisfy this Court beyond reasonable doubt that the legislative provisions concerned are unconstitutional and he referred, in this respect, quite rightly, to The Board for Registration of Architects and Civil Engineers v. KyriakidesUNK, (1966) 3 C.L.R. 640, 654, 655, and Chimonides v. ManglisUNK, (1967) 1 C.L.R. 125, 156.
In the light of case-law such as Mikrommatis and Arakian, supra, Tsangarides and others (No.2) v. The RepublicUNK, (1975) 3 C.L.R. 290, Anastasiou v. The RepublicUNK, (1977) 3 C.L.R. 91, The Republic v. DemetriadesUNK, (1977) 3 C.L.R. 213, Ioannides v. The RepublicUNK, (1979) 3 C.L.R. 295, Antoniades v. The RepublicUNK, (1979) 3 C.L.R. 641, Angelides v. The RepublicUNK, (1982) 3 C.L.R. 774, HjiIoannou v. The RepublicUNK, (1983) 3 C.L.R. 1041 and Apostolides v. The RepublicUNK, (1984) 3 C.L.R. 233,1 have reached the conclusion that the relevant legislative provisions are not unconstitutional as resulting in unequal treatment of the petitioners contrary to Article 28, because, in my opinion, they make a differentiation and classification which was reasonably open to the Legislature in view of the nature of the posts held by the petitioners and the nature of the office of Municipal Councillor.
Moreover, Article 25 of the Constitution is not violated inasmuch as the said legislative provisions do not interfere directly with the right safeguarded under such Article, because if the petitioners decide to abandon their posts in order to take up the office of Municipal Councillor this entails in only an indirect interference with the said right which is not excluded by Article 25 (see, in this respect, inter alia, The Police v. Liveras, 3 R.S.C.C. 65, 67, Psaras v. The RepublicUNK, (1968) 3 C.L.R. 353, 364, Antoniades, supra, 659, Apostolou v. The RepublicUNK, (1984) 3 C.L.R. 509, 524, and Ambrosia Oils v. The RepublicUNK, (1984) 3 C.L.R. 943, 948).
It is not really necessary to pronounce on this occasion on...
To continue reading
Request your trial