The Supreme Constitutional Court has rejected an application to examine and rule on whether a specific provision concerning state employee pensions is constitutional in a highly significant decision affecting dozens of retired civil servants.
The case concerned an Accountant General’s Office decision to deny a pension to a widow of a retired civil servant because their marriage took place after his retirement.
The applicant’s husband retired on 1 February 1986, and their marriage took place after his retirement on 11 December 2000, according to yesterday’s Constitutional Court decision. Her husband died in 2016.
The refusal of the widow’s pension application on 30 March 2016 was based on Article 37(3) of the Law as it stood at the relevant time, which stated that marriages taking place after the deceased ceased to be an employee were not taken into account for widow’s pension payment purposes.
The affected woman appealed to the Administrative Court, which ruled in her favour, citing primarily the Dias decision. The court decided Article 37(3) of the Law was unconstitutional as it violated the equality principle by applying different criteria between similar situations.
In Dias, applicants sought to declare the Lotteries Law unconstitutional, which exceptionally granted lottery operation rights to the Cyprus Broadcasting Corporation.
The appellants’ application was rejected because no provision existed allowing similar licences to other radio stations.
The decision stated the absence of a legislative provision cannot be remedied by judicial decision because, in such cases, the constitutional review exercised by the Supreme Court would transform into a means of reforming or supplementing legislation.
The Constitutional Court states that what the decision essentially established is that the court is not permitted to legislate when judging whether a law is constitutional.
Case reached Appeals Court
The Supreme Court decision reached the Appeals Court on behalf of the Attorney General, where the first instance judgment was overturned.
The Appeals Court decided, commenting on the Administrative Court’s statements, that “the scope of Dias United Public Co Ltd is not limited only to cases where legislation includes no provision whatsoever, and thus the court’s constitutional review of legislation would transform into a means of reforming or supplementing legislation, as the first instance court’s position. It extends to cases where deletion of either reservations or phrases is sought from the general regulation of legislation so that declaring them unconstitutional leaves the general regulation intact”.
The Constitutional Court (nine judges) ruled unanimously that the application does not attempt to interpret the legislative provision of Article 37(3) of the Law concerning non-provision of widow’s pension if marriage took place after retirement but rather to interpret the Dias decision.
The misinterpretation of Dias makes interpretation of Article 28 of the Constitution necessary, according to the applicant’s claim.
Consequently, the court stated, “Regardless of whether the Appeals Court’s decision is correct, and without ruling whether Article 37(3) of the Law introduces unequal treatment, we judge that the legal question formulated does not fall within any of the established preconditions of Article 9(2)(c)”.
“It constitutes a disguised appeal for review of the Appeals Court decision’s correctness, which falls outside our jurisdictional framework”.
