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[/B]Unconstitutional amendments by Members of Parliament that increase the cost of the approved Budget
Constitutional restriction on the hiring of Judges, Attorney General of the Republic and Assistant Attorney General of the Republic
The Plenary Session of the Supreme Court issued an opinion on 27 June 2023 on two Petitions of the President of the Republic, which relate, first, to transitional provisions introduced by amendments of Members of Parliament to the bill gradually extending compulsory pre-primary education from the age of 4 and second, to an amendment of Members of Parliament regarding the employment in the private sector of former state officials, judges and certain former employees of the public sector and the wider public sector.
Specifically, the President's Petitions relate to the Acts summarily titled:
(i) "The Primary and Secondary Education (Compulsory Education and Provision of Free Education) (Amendment) (No. 2) Act, 2022", and
(ii) "The Control of Employment in the Private Sector by Former State Officers and Judges and Certain Former Public and Broad Public Sector Employees (Amendment) Act, 2022", and
(ii) "The Control of Employment in the Private Sector by Former State Officers and Judges and Certain Former Public and Broad Public Sector Employees (Amendment) Act, 2022".
Specifically:
(i) on the First Petition, the Full Bench of the Supreme Court, in its unanimous decision, held that the transitional provisions in question, which regulate the manner of attendance of children of compulsory pre-primary education in the school years 2023-2024 and 2024-2025 in public, or community kindergartens, and in the 2025-206 school year in public, or community, or private kindergartens, and from the 2026-2027 school year in public kindergartens, are unconstitutional. This is because they create additional costs to the Ministry of Education, Sports and Youth, which, in turn, entail an increase in the State's under-budgeted expenditures. They therefore contravene the provisions of Article 80.2 of the Constitution, which stipulates that 'no bill involving an increase in the expenditure provided for in the budget may be tabled by a Member of Parliament' and violate Article 179 of the Constitution.
Consequently, the Supreme Court agreed with the position of the Attorney General of the Republic that, in order to meet the needs for the attendance of children who will not attend private kindergartens, the creation of additional sections in public kindergartens is required, with the cost of staffing and operating them not being included in the already approved State budget.
On behalf of the Attorney General of the Republic, the case was handled by Ms Maria Kyprianou, Attorney of the Republic A'.
(ii) On the second petition, the Supreme Court held that the law in question, which provides for the inclusion of retired judges, and the Attorney General of the Republic and the Assistant Attorney General of the Republic to the provisions of the Act on the Control of the Taking of Employment in the Private Sector by Former State Officials and Certain Former Employees of the Public Sector and the Wider Public Sector, and by extension, their obligation to apply to the Special Commission provided for in the Act, for their intention to take up any employment with a specific employer in the private sector within the first two years from the date of their retirement, or termination of service, or term of office, is not contrary to and inconsistent with provisions and articles deriving from the Constitution, the Treaty of the European Union, the Charter of Fundamental Rights of the European Union and the Principle of Separation of Powers, which derives from the Constitution.
In particular, the Supreme Court decided that the Law under reference does not alter any of the conditions of service of the Judges, and of the Attorney General of the Republic and the Assistant Attorney General of the Republic, nor does it affect any of the principles inherent in their function, such as those of independence, impartiality and equality. Further, the Supreme Court held that any other options potentially available to the Supreme Court to regulate this issue does not render the Petitioned Law as unconstitutional.
It is worth noting that previously, the Supreme Court rejected a preliminary objection by the House of Representatives seeking to exclude the Judges of the Supreme Court from consideration of the Petition as the issue concerned them. Indeed, the Court held that there was no question of excluding the Judges of the Supreme Court since there was no other Court of such jurisdiction which could hear the case in question.
Further, in the same case, the Supreme Court rejected a second preliminary objection of the House of Representatives which was based on the claim that the Attorney General of the Republic, because he had a personal interest in the outcome of the Petition as the law concerned him, he ought not to have advised the President of the Republic as to the legality of the Petitioned Law and instead advised the President of the Republic to be represented by a private lawyer. In its decision, the Supreme Court held that the Attorney General of the Republic, properly, as the legal adviser to the State, exercised a serious aspect of his duty and advised the President of the Republic on the possible unconstitutionality of the Law under Petition.
The case, on behalf of the Attorney General of the Republic, was handled by Ms Elena Simeonidou, Senior Advocate of the Republic.
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