JUDICIAL REVIEW AND CONSTITUTIONAL ADJUDICATION IN CYPRUS AND BEYOND

INTRODUCTION

This is a book about public law, judicial review and constitutional adjudication, primarily in Cyprus but also elsewhere.

In this book, the subjects under consideration will be divided as follows. There will first be a general introduction to the 1960 Constitution, put in place when Cyprus became independent in 1960, and then there will be a detailed discussion of the doctrine of necessity, which was invoked in 1964 in order to deal with the consequences of the events of 1963 when the central pillar of the 1960 Constitution, namely the principle of bicommunalism, broke down.

There will then follow an analysis of the principal areas of judicial review, as followed in Cyprus, both before 1964 and thereafter. We shall consider judicial review of legislation, judicial review of administrative action, judicial review of constitutional amendments, judicial review in the area of the doctrine of necessity and also with judicial review by means of prerogative orders. As can be seen, we shall in effect deal with the subject of judicial review both in constitutional and administrative law, based upon the peculiar circumstances of Cyprus – a subject that is of great interest since it combines various themes and strands of public law, some traditional and others peculiar to Cyprus.

Beyond Cyprus, I will discuss issues of both constitutional theory and practice arising in various jurisdictions, the principal one being the United States of America and the rich jurisprudence of the United States Supreme Court, with reference to some others as well, principally India and the Indian Supreme Court. Various theories and topics of judicial review and constitutional theory will be addressed in the chapters that follow, with judicial methodology being one of them.

It goes without saying that the subject of judicial review is closely connected with that of constitutional adjudication, with the latter being usually more

interesting and difficult than the former (at least as practised by various Supreme Courts in the principal jurisdictions we shall consider).

We must begin with a few introductory remarks about the history and development of public law in Cyprus:

(i) The development of the public law of Cyprus is closely linked with the history of Cyprus, especially since the establishment of the Republic of Cyprus in 1960. This is not a historical treatise, but some commentary on the events and developments since 1960 will be inevitable.

(ii) The Constitution of Cyprus is known as the “1960 Constitution”, though there are very serious differences between what is set out on paper in the Constitution that came into force in 1960 and the constitutional arrangements in place now. The principal difference is that the 1960 Constitution was premised on the principle of bicommunality – namely, the joint participation in almost all the organs, departments and processes of government of the two main ethnic communities of Cyprus, the Greek Cypriots (comprising about 82 per cent of the people of Cyprus in 1960) and the Turkish Cypriots (comprising about 18 per cent of the people of Cyprus in 1960). However, starting in late 1963, following the outbreak of inter-communal clashes, the Turkish Cypriots withdrew from the Government set up under the 1960 Constitution, with the result that the formal machinery of government has ever since been under the exclusive control of the Greek Cypriot Community. Despite this major development, which brought about the political division of the two Communities and the collapse of the governmental machinery in the form contemplated under the 1960 Constitution, the international community continued to recognise, as it still does, the legitimacy of the Republic of Cyprus and its Government. In this respect, the judicially-crafted doctrine of necessity played a very significant role.

(iii) In 1974, Turkey invaded Cyprus and occupied a significant part of the island. The result is that the internationally recognised Government of the Republic does not exercise any control in the occupied area, where a puppet regime, the “Turkish Republic of Northern Cyprus” (TRNC), was set up by Turkey and remains in place. This has received no recognition from the international community, which continues to recognise on an exclusive basis the Republic of Cyprus and its Government.

(iv) In 2004, despite the continuation of the Turkish occupation of the northern part of Cyprus, the Republic of Cyprus became a full member of the European Union, with major consequences for the legal as well as the political system of the country.

(v) Throughout the period from 1963 until today, the 1960 Constitution has been in force, as modified by the doctrine of necessity, which was invoked when the Turkish Cypriots withdraw from government. In consequence, the constitutional law of Cyprus consists of the 1960 Constitution, as modified by the doctrine of necessity, and as interpreted by the Supreme Court of Cyprus.

(vi) As regards the constitutional law of the Republic, an essential part of it has been the concept of judicial review, namely that the courts, through a variety of methods, have the power of review of the constitutionality of legislation.

(vii) As regards the administrative law of the Republic, this has developed in the context of a particular provision of the Constitution, namely Article 146. As we shall see, Cyprus’ administrative law is modelled on the Continental systems of administrative law (droit administratif), as opposed to English administrative law or comparable systems developed in other Commonwealth countries. An essential part of Cyprus’ administrative law is judicial review by the Administrative Court of the legality of administrative acts and decisions, as this term is understood and will be explained subsequently.

(viii) As will become very obvious, the public law of Cyprus consists of two distinct legal systems from different jurisprudential traditions. Cyprus’ constitutional law, as we shall see, is based (at least in terms of methodology and approach) on the American constitutional system and what might be called the Anglo-Saxon legal tradition, whereas its administrative law is grounded in the Continental legal tradition. Both systems of law are, however, administered by the same judges, with interesting consequences, to be discussed later in this book.

(ix) Another important dimension in any consideration of the public law of Cyprus is the jurisprudence of international courts and tribunals, principally European courts. This is in view of the fact that the Cyprus problem is an international one, and various aspects of it have on

numerous occasions been adjudicated upon by the European Court of Human Rights in Strasbourg, the European Court of Justice (now known as the Court of Justice of the European Union) in Luxembourg and indeed the International Court of Justice at the Hague. In a way, what might be called international legal developments have been absorbed into the municipal legal system of Cyprus and have become an integral part of it. This aspect of modern public law, with which I have dealt elsewhere, will not be considered in this book, though some reference to it will be inevitable.

All in all, the public law of Cyprus, with judicial review as its most prominent feature, constitutes a very interesting body of law, both in terms of substantive content and in terms of approach and methodology. It is perhaps the only system of public law that combines so prominently elements from the common law with elements from the Continental/civil law tradition.

Beyond the above, as will appear from what follows, judicial action has been instrumental in saving not only the Government of the Republic of Cyprus but also the Republic itself. In this context, judicial action has been used both as a shield and as a sword, defending the Republic and its Government from perils originating within and without Cyprus, on the one hand, and indeed asserting and protecting the causes of constitutional continuity and state integrity on the other.1

A. CONSTITUTIONAL PERSPECTIVES
AND DEVELOPMENTS

Judicial review and constitutional adjudication are usually considered together (as will be the case with the present book) with a constitution – in our case primarily the 1960 Constitution of Cyprus.

Obviously, the first question relates to the nature of a constitution. As Professor Wheare2 has pointed out, the word “constitution” is commonly used in two senses. The first is that it is used to describe

the whole system of government of a country, the collection of rules which establish and regulate or govern the government. These rules are partly legal, in the sense that courts of law will recognize and apply them, and partly non-legal or extra-legal, taking the form of usages, understandings, customs, or conventions which courts do not recognize as law but which are no less effective in regulating the government than the rules of law strictly so called.

The above is a description of the British Constitution or systems like the one followed in the UK, where there is a combination of “rules of law” enforced by the courts with non-legal rules and standards which are observed in practice and are regarded as “customs or conventions” without being enforced in court per se. This is what is often meant by an unwritten constitution.

But generally, nowadays, a constitution refers only to rules of law and other legal materials which are invariably embodied in one or more written texts, and which are enforced by the Judiciary. As put by Professor Wheare:3

The word ‘constitution’ is used in a narrower sense than this. It is used to describe not the whole collection of rules, legal and non-legal, but rather a selection of them which has usually been embodied in one document or in a few closely related documents [...]. ‘The Constitution’, then, for most countries in the world, is a selection of the legal rules which govern the government of that country and which have been embodied in a document.

The most famous example of a constitution in the narrower sense is the Constitution of the United States of America. Obviously, both the Indian Constitution and the 1960 Constitution of Cyprus fall into the above category. It is the latter that will form the backbone of this book, though there will be extensive references to other constitutions, mainly the Constitution of the United States.

Two points can be made at this stage. First, there is usually nothing simple about a constitution. Even though all or most of its rules and principles may have been adopted at the same time, there is hardly any constitution which is free from ambiguities or gaps or contradictions. Secondly, invariably if not always, such ambiguities, gaps and contradictions must be resolved by the Judiciary, by means of judicial review and constitutional adjudication. A concept often used in this context is that of interpretation, namely that a constitution must be “understood” and interpreted by resort to various methods and techniques. As one learned author has explained:4

The provisions of national constitutions, like other laws, are often ambiguous, vague, contradictory, insufficiently explicit, or even silent as to constitutional disputes that judges must decide. In addition, they sometimes seem inadequate to deal appropriately with developments that threaten principles the constitution was intended to safeguard, developments that its founders either failed or were unable to anticipate.

Nobody can suggest that judges should be able to do anything they want with the interpretation of a constitution. Judges are usually appointed and not elected, and their principal duty is to apply the law “as they find it”, not as they would wish it to be according to their personal preferences. At the same time, no constitution means the same to all judges and no constitution

can be applied otherwise than through judicial deliberation and decision, which unavoidably engages the subjectivity of the interpreter. The following passage sets out the inevitable dilemma well:5

How judges resolve these problems through ‘interpretation’ is problematic and controversial, mainly because legitimate interpretation is difficult to distinguish from illegitimate change. Judges thought to have improperly changed the constitution while purporting to interpret it are vulnerable to criticism for usurping the prescribed power of amendment, violating their duty of fidelity to law, retrospectively altering litigants’ legal rights, flouting the principles of democracy and federalism (if the amending procedure requires special majorities to protect regional interests), and straying beyond their legal expertise into the realm of politics.

At the end of the day, the challenge inherent in judicial review and constitutional adjudication is to distinguish between legitimate interpretation, on the one hand, and the effectuation of change by means which cannot be reconciled with the theory of constitutionalism and the practice of democratic government, on the other.

THE ZURICH AND LONDON AGREEMENTS
AND THE 1960 CONSTITUTION

(i) Overview

The 1960 Constitution of the Republic of Cyprus has its roots in the Zurich Agreement reached between the Greek and Turkish Governments on 11 February 1959 which in turn was incorporated in the agreements reached between those Governments and that of the UK in London on 19 February of the same year. On that date also the representatives of the Greek and Turkish Communities of Cyprus “accepted” the accords reached, and eventually these agreements were embodied in three treaties and a Constitution (usually called the 1960 or Zurich Constitution) which were all signed in Nicosia on 16 August 1960 and thus supplied the legal framework of the Republic of Cyprus.

(ii) Treaties

The overall political and constitutional settlement that has its basis in the Zurich and London Agreements is set at two levels – the international, which is demarcated by three treaties, and the internal, which consists of the 1960 Constitution.

The three treaties, the Treaty of Establishment, the Treaty of Alliance and the Treaty of Guarantee, reflected the uneasy compromise negotiated at Zurich and London, and effectively shackled the newly born State.

The Treaty of Establishment, between the UK, Greece, Turkey and Cyprus, provides, inter alia, that the territory of the Republic of Cyprus “shall comprise the Island of Cyprus [...] with the exception of [...] two areas”, which remain “under the sovereignty of the United Kingdom”.

The Treaty of Alliance, between Greece, Turkey and Cyprus, provides for various matters relating to the co-operation of the parties “for their common defence” and also makes provision for the establishment of Tripartite Headquarters in Cyprus together with military contingents from Greece and Turkey.

The Treaty of Guarantee, between the UK, Greece, Turkey and Cyprus, is of great significance, and inter alia provides the following:

Article I

The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution.

It undertakes not to participate, in whole or in part, in any political or economic union with any State whatsoever. It accordingly declares prohibited any activity likely to promote, directly or indirectly, either union with any other State or partition of the Island.

Article II

Greece, Turkey and the United Kingdom, taking note of the undertakings of the Republic of Cyprus set out in Article I of the present Treaty, recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the state of affairs established by the Basic Articles of its Constitution. [...]

Article IV

In the event of a breach of the provisions of the present Treaty, Greece,

Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure the observance of those provisions.

In so far as common or concerted action may not prove possible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty.

The Treaty of Guarantee presents significant difficulties and was destined to play an important role in the subsequent history of Cyprus. This subject has been dealt with elsewhere6 and I will not dwell on it here. Suffice it to add that the Treaties of Alliance and Guarantee are incorporated in and form part of the 1960 Constitution whereas, despite its significance, the Treaty of Establishment does not form part of the latter.

(iii) The 1960 Constitution

As far as internal constitutional and governmental arrangements are concerned, these are contained in the 1960 Constitution, which was drafted within the rigid and narrow framework of the Zurich and London Agreements. There have been a number of extensive commentaries on its complexity, overwhelming (bi)communal character, and sui generis provisions.7 Its central principles were, first, that the State being set up was a bicommunal one, secondly, that there had to be the most minute and detailed regulation of every issue or aspect in the relations between Greek and Turkish Cypriots that could ever become controversial and a possible bone of contention between the two Communities and, third, that all the basic principles of the Constitution should forever remain unalterable.

The very first Article of the Constitution provides that the State of Cyprus is an independent and sovereign Republic with a presidential regime, the President being a Greek and the Vice-President being a Turk elected by the Greek and Turkish Communities of Cyprus respectively. There follow numerous provisions which establish the bicommunal character of the State. Thus, the two Communities are first defined, and an equal status is

accorded to them with regard to a variety of matters, including the official languages of the Republic, the choice of its flag, the right to fly the national flag of Greece or Turkey as the case may be, the celebration of Greek and Turkish national holidays, and many others. Other provisions entrench the recognition of the two Communities’ separate existence, particularly in the political and cultural areas. To take but two examples, one very significant and the other almost comical: all elections take place on the basis of separate communal electoral lists and separate voting, and sound and vision broadcasting hours are allocated between the two Communities according to a complicated formula.

Additionally, the Constitution provided for an exclusively communal level of political and social activity. It did so by demarcating special communal competencies and jurisdictions, and by establishing organs and structures which are purely communal in representation and function. Thus, provision was made for two Communal Chambers, elected separately by the two Communities and having exclusive legislative competence with regard to religious, educational, cultural and teaching matters, personal status, the composition of courts dealing with civil disputes relating to personal status and to religious matters, and matters where the interests and institutions are of “purely communal nature”.8 With regard to all these matters the two Communal Chambers were declared to have power to impose direct taxation on the members of their respective Communities and were also given competence both to direct policy within their communal domain and to exercise relevant administrative powers as might be provided by a communal law, provided that no law or decision of a Communal Chamber would contain anything contrary to the interests of the security of the Republic or its constitutional order or the fundamental rights and liberties guaranteed by the Constitution. As is apparent, the Communal Chambers, entrusted with jurisdiction over communal matters, were special legislative assemblies, their range of competence being limited by reference to two general criteria, the subject matter of legislation and the communal status of the persons to whom their enactments would be addressed.

In this connection one should also note the provision regarding the creation

of separate municipalities in the five largest towns of the Republic. Whereas in all other matters what is established is a functional separation of powers, in respect of the municipalities the relevant provisions are based on a supposed territorial separation of the two Communities.

Finally, the two Communities were accorded rights of special relationship with Greece and Turkey respectively. It was thus provided that the two Communities had the right to receive subsidies from the Greek and Turkish Governments for institutions and purposes of education, culture, athletics and charity, and, where necessary, Greece and Turkey might also provide schoolmasters and clergymen for the functioning of the relevant communal institutions. Under the Constitution, education and culture were thus viewed as strictly communal concerns, which in turn meant that no state responsibility in this connection was recognised and no effort was made to integrate communal institutions and processes within the scope of state activity. Education in particular was obviously conceived in a very narrow sense, as simply the transmission of communal cultural and religious values from which the State must strictly abstain.

When one turns to an examination of the political system set up by the Constitution and its distribution of governmental powers, what becomes particularly noticeable is that almost all state organs are designed to ensure the participation of the two Communities as such in both their composition and functioning. The basis and extent of this participation vary from organ to organ. But what is clear is that the 1960 Constitution predicates the continued existence and operation of almost all governmental organs on the joint membership and participation of both Communities.

The Executive

In the area of the Executive, there are both a Greek President and a Turkish Vice-President.

The President and the Vice-President are elected separately by universal and secret ballot by the Greek and Turkish Communities respectively.

In the event of the temporary absence or incapacity or of any vacancy in the office of the President or of the Vice-President of the Republic, the President of the House of Representatives (a Greek Cypriot) and the Vice-President of the House of Representatives (a Turkish Cypriot) shall act for the President

and the Vice-President respectively. There was never an arrangement whereby the Turkish Vice-President would deputise for or act instead of the Greek President.

The President and the Vice-President jointly exercise executive power in respect of a number of subjects set out in the Constitution, though in respect of certain other subjects they exercise the necessary power and competence separately–for example, as regards the right of recourse to the Supreme Constitutional Court on a number of matters, addressing messages to the House of Representatives, and exercising the prerogative of mercy in respect of members belonging to their own Community. More importantly, the President and the Vice-President, either jointly or separately, have “the right of return” of any law or decision of the House of Representatives or of the Council of Ministers to the House of Representatives and the Council of Ministers “for reconsideration” as well as “the right of final veto” in respect of any law or decision of the House of Representatives or any decision of the Council of Ministers “relating to foreign affairs, defence or security”. This is perhaps the most important aspect of what might be called the obstructive exercise of executive power, namely that the President and the Vice-President, either jointly or separately, can veto any decision of either the Council of Ministers or of the House of Representatives concerning foreign affairs, defence or security. Since it was highly unlikely that either the Council of Ministers or the House of Representatives would adopt a decision contrary to the wishes of either the Greek President or the Greek Cypriot Community, it followed that the right of final veto was perhaps the most important prerogative of the Turkish Vice-President, acting of course on the basis of the interests and wishes of the Turkish Cypriot Community, and, by extension, Turkey.

It is further provided, in a rather obscure provision of the Constitution, that the President and the Vice-President jointly “ensure” executive power and have, for this purpose, a Council of Ministers composed of seven Greek Ministers and three Turkish Ministers. These Ministers should be designated separately by the President and the Vice-President, who shall then appoint them by instrument signed by them both, and may be dismissed at will by the relevant appointing authority, namely the President in the case of Greek Ministers and the Vice-President in the case of Turkish Ministers. It is further provided that the decisions of the Council of Ministers shall be taken by absolute majority and must, unless the right of veto or return is exercised by the President or the Vice-President, be promulgated immediately by them

both. In brief, the Council of Ministers is the highest organ in the Republic for the formulation and exercise of executive power in all respects except for the specific subjects and authorities allotted to the President and the Vice-President of the Republic, to Ministers and to the Communal Chambers.9

The Legislative Power

As regards legislative power, it is provided that this shall be exercised by the House of Representatives, consisting of 50 representatives of whom 35 should be Greek and 15 Turkish.

Legislative power shall be exercised “in all matters except those expressly reserved to the Communal Chambers”.

The President of the House is to be a Greek, to be elected by the Greek representatives, and the Vice-President must be a Turk, to be elected by the Turkish representatives. In the case of a vacancy in either office an election shall take place with all due speed and in the case of the temporary absence of the President or the Vice-President of the House the relevant functions shall be performed by the eldest representative of the Community to which the specific office “belongs”.

The House cannot be dissolved either by the President or the Vice-President of the Republic but only by its own decision.

Finally, the laws and decisions of the House of Representatives shall be passed by a simple majority of the representatives present and voting. However, “any modification of the Electoral Law and the adoption of any Law relating to municipalities and of any Law imposing duties or taxes” require “a separate simple majority” of the representatives elected by the Greek and the Turkish Communities respectively taking part in the vote.10

The Judiciary

In the area of the Judiciary, authority is vested under the Constitution in the Supreme Constitutional Court and the High Court.

The Supreme Constitutional Court is to be composed of three judges, a Greek, a Turk and a neutral judge, the neutral judge to be the President. The main jurisdiction of the Supreme Constitutional Court relates to the determination of whether a law or decision of the House of Representatives is, either in toto or in part, contrary or repugnant to any provision of the Constitution. If the law or decision is declared by the Supreme Constitutional Court to be unconstitutional, the law or decision is annulled. There are various provisions in the Constitution enabling the President and the Vice-President, together or separately, to refer proposed laws and decisions to the Supreme Constitutional Court for judicial examination prior to their promulgation. The Supreme Constitutional Court furthermore has exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, act or omission of any organ, authority or person exercising any executive or administrative authority is contrary to the Constitution or any law or is made in excess or abuse of power, whereupon the Court may confirm or annul such decision or act or declare that such omission ought not to have been made and that whatever has been omitted should have been performed. The jurisdiction thus given to the Supreme Constitutional Court is similar to the revisional jurisdiction of the Conseil d’Etat in France or the Council of State in Greece, the decisions of which have been guiding the Supreme Constitutional Court (and its successor, the Supreme Court of Cyprus) in the exercise of its administrative jurisdiction. Any decision of the Supreme Constitutional Court on any matter within its jurisdiction is binding on all courts, organs, authorities and persons in the Republic.

The High Court consists of two Greeks, one Turk and a neutral President, all appointed by the President and the Vice-President of the Republic acting together. They decide by majority but in the case of an equality of votes the neutral President has a second vote. In the event of the temporary absence or incapacity of the President of the High Court he shall be replaced by the President of the Supreme Constitutional Court and vice versa. The High Court is the highest appellate court in the Republic and also has original and revisional jurisdiction as provided in the Constitution or may be provided by a law. The High Court also has power to issue prerogative orders, namely orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Furthermore, the High Court has jurisdiction to determine the composition of a court which is to try civil or criminal cases in which the parties belong to different Communities. The High Court also constitutes

the Supreme Council of Judicature for the appointment, transfer, removal and disciplinary control over judges of subordinate courts. The Disciplinary control over the judges of the High Court is exercised by the Supreme Constitutional Court and over the Judges of the Supreme Constitutional Court by the High Court.11

The bicommunal dimension is also very much evident in the area of the administration of justice. It is thus provided that a civil or criminal case in which the parties or the accused and the complainant all belong to one Community shall be tried by a court the judge or judges of which shall belong to such Community and in the event that the parties or the accused and the complainant belong to different Communities the composition of the court shall be determined by the High Court. Furthermore, the execution of any judgment of a court composed of judges belonging to one Community shall be carried out through officers belonging to such Community.

The Public Service

The Public Service under the 1960 Constitution was to be composed of Greek and Turkish Cypriots according to a ratio of 7:3. This same ratio was also prescribed for the Security Forces of the Republic, these being divided into the Police and the Gendarmerie. In the armed forces the relevant ratio was 6:4.

In charge of appointments to the Public Service was to be a Public Service Commission consisting of ten members (a Chairman and nine other members appointed for a term of six years by the President and the Vice-President of the Republic acting together). Of the ten members of the Commission, seven were to be Greek Cypriots and three Turkish Cypriots. In general, the decisions of the Commission were to be taken by simple majority but this was qualified by other complex and detailed provisions making it necessary that in matters of appointment, promotions and transfers, and with regard to the exercise of disciplinary control, this majority had to include a minimum number of Greek and Turkish votes depending on whether the decision related to a Greek or a Turk. In short, it may be said that a power of veto was given to the Greek or Turkish members of the Public Service Commission to frustrate majority decisions on the basis of communal considerations.