Coronavirus restrictions: Revisiting the constitution

The Covid-19 restrictive measures are illegal and unconstitutional

By Yiannos Georgiades

In Cyprus, since March 2020 the health minister has been issuing decrees by invoking Article 6 of the Quarantine Law (CAP. 260) [as amended] and the powers assigned to him by the Council of Ministers which are published in the Official Gazette of the Republic of Cyprus as Regulatory Administrative Acts.

According to Article 6 of the Quarantine Law (CAP. 260):

“Power to make Regulations

6. The Council of Ministers may by Order make Regulations to be published in the Official Gazette of Republic of Cyprus for all or any of the following purposes –

• Prescribing the steps to be taken within the Republic upon any local area, whether within or outside the Republic, being declared to be an infected local area;
• Preventing the introduction of any dangerous infectious disease into the Republic or any part thereof from any local area outside the Republic, whether such local area is an infected local area or not;
• Preventing the spread of any dangerous infectious disease from any local area within the Republic, whether an infected local area or not, to any other local area within the Republic;
• Preventing the transmission of any dangerous infectious disease from the Republic or from any local area within the Republic, whether an infected local area or not, to any local area outside the Republic;
• Prescribing the powers and duties of such officers as may be charged with carrying out such Regulations;
• Fixing the fees and charges to be paid for any matter or thing to be done under such Regulations, and prescribing the person by whom such fees and charges shall be paid, and the persons by whom the expenses of carrying out any such Regulations shall be borne, and the person from whom any such expenses incurred by the Government of the Republic may be recovered, and
• Generally for carrying out the purposes and provisions of this Law and of any sanitary convention to which the Republic has acceded or may hereafter accede;
• the establishment of a network for Epidemiological Surveillance and Control of Infectious Diseases with a view to monitoring, recording, analysing data on infectious diseases and providing information to competent authorities in other countries.”

As evident from the above article the Council of Ministers is authorised to set restrictive measures through regulations for the purposes provided for by law.

However, in accordance with Article 3(1) of the Deposit to the House of Representatives of Regulations Issued by Authorisation Law (Law No. 99/1989) [as amended]:

“Regardless of the provisions of any other Law, when based on a Law or based on an Authorisation of Law the Council of Ministers or any member of it has the power to issue Regulations these regulations are deposited in the House of Representatives for approval.”

It is therefore clear that according to the above article any regulations issued pursuant to Article 6 of the Quarantine Law (CAP. 260) must be approved by the House of Representatives under Article 3(1) of Law 99/89

It is also important to stress that the law gives power to issue regulations and not decrees. Therefore, if what the minister issues are decrees and not regulations, it is illegal. On the other hand, if they are regulations, they are still illegal unless they are approved by the House of Representatives.

The above interpretation is also consistent with the provisions of the Constitution of the Republic of Cyprus which guarantee the individual rights of citizens of the Republic (Article 13 Right of free movement, Article 19 Freedom of speech and expression, Article 20 Right to education, Article 21 Freedom of assembly, Article 25 Right to establish a business, Article 27 right to strike), the limitation of which would be justified for public health purposes only through legislation with the approval of the House of Representatives and not through regulations or ministerial decrees. Please note that Article 7 Right to life is not subject to any restrictions on public health grounds.

Further, according to Article 179 of the Constitution:

“No law or decision of the House of Representatives … and no act or decision of any organ, authority or person in the Republic exercising executive power or any administrative function shall in any way be repugnant to, or inconsistent with, any of the provisions of this Constitution”

Amendment of the Constitution may be made on the basis of Article 182, subject to adoption of any amendment law by a majority of 2/3. Furthermore, there are provisions in Article 183 of the Constitution which are applicable in cases where a state of emergency is declared, which is not the case here.

Yiannos Georgiades is partner at Y. Georgiades & Associates LLC