THE CYPRUS EXPERIENCE

INTRODUCTION

The case of Cyprus presents great interest with regard to various issues of constitutional law and practice. Matters, questions and issues regarding the formation, amendment and transformation of constitutions, as well as the subjects of revolution, necessity and constitutional unamendability, figure prominently in discussions of various aspects of the Cyprus problem and thus deserve careful and in-depth study. Regrettably, this has not been the case, with the Cyprus problem being regarded primarily as a political one, whereas more thorough consideration and analysis reveal fundamental legal issues not encountered elsewhere. It is these that form the subject matter of this book.

Before we embark on the consideration of the above issues, we must say a few things about historical, political and legal developments since the issues and matters set out above are 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, particularly when such commentary will be useful in the exposition of aspects of constitutionalism, as discussed in this book.

The starting point is the Constitution of Cyprus known, as the “1960 Constitution”, though there are very serious differences between what is set out in the Constitution which came into force in 1960 and the constitutional arrangements in place now. The principal difference is that, whereas 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 and the Turkish Cypriots, in late 1963 and 1964 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 machinery of Government as set out in the letter of the 1960 Constitution, the international community continued to recognise, as it still does, both the Republic of Cyprus and its Government.[1] In this respect, the judicially developed doctrine of necessity played a very significant role.

A major and dramatic development occurred in 1974, when Turkey invaded Cyprus and occupied a significant part of the island. The result is that the recognised Government of the Republic does not exercise any control over the occupied area, where indeed a puppet regime, the “Turkish Republic of Northern Cyprus” (“TRNC”), was set up by Turkey. This has received no recognition from the international community, which continues to recognise on an exclusive basis both the Republic of Cyprus and its Government.[2]

In 2004, despite the continuation of the Turkish occupation of northern 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 Cyprus. Cyprus’ accession to the European Union as a full member, despite its political problems and the continuing Turkish occupation, was and remains a very important fact, legal and political.

As will be seen below, 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 departed from Government with the result that the formal machinery of Government came under the exclusive control of the Greek Cypriot Community. 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. This is one of the principal subjects of this book, in other words not the “1960 Constitution as originally drafted” but what can be called “the living

Constitution”, namely the 1960 Constitution including the judicially developed doctrine of necessity, as practised in the Republic of Cyprus today.

The doctrine of necessity is a very controversial one, though its invocation in Cyprus has been successful (in the sense that its use has been accepted by almost all international organisations and states).[3] It forms an essential part of what we can call “constitutionalism” in Cyprus. A significant part of this book will be devoted not only to the emergence and development of this doctrine but also to its rationale and underlying principles. Equally, we shall consider some other issues which may be related to the doctrine of necessity, such as the concept of revolution and that of the “basic structure of the constitution” (in terms of the recent theory that some basic parts or features of the constitution are unamendable, with the result that any attempted amendment thereof will be held to be null and void).

Another important dimension in any consideration of the constitutional law and practice of Cyprus is the jurisprudence of international (principally European) Courts and tribunals, in view of the fact that the Cyprus problem is an international one and various aspects of it have on numerous occasions been, either directly or indirectly, adjudicated upon by the European Court of Human Rights, the European Court of Justice and indeed the International Court of Justice itself.[4] In a way, what might be called international legal developments have been absorbed into the Cypriot legal system and have become an integral part of it.

In the past decades there has developed a huge literature on “legal systems”, their genesis, their continuity, their content, their collapse.[5] In Oxford, as a student, I attended the lectures and seminars of Professor Hart and of Professor Dworkin. I was fortunate to hold many conversations with

Professor Finnis and others. Later, as a Lecturer in Oxford, I was privileged to participate in the Jurisprudence Seminars of the Faculty of Laws, and though I have been practising law in Cyprus since 1981 I have tried (not very successfully) to follow major developments in Jurisprudence and the Philosophy of Law. I have profited immensely from the writings of the above scholars, particularly those of Hart and Dworkin.

In this book, I have tried to apply some of the above theories of constitutional and public law, as well as related techniques and methodologies, to Cyprus and its legal system. Perhaps, there is no other system of law which presents such theoretical interest, in view of its origin, developments and varied content. Is there such a thing as a unified “system of law” in Cyprus? What are the major components of this system? How can jurisprudential criteria of membership, identity, succession and continuity be applied to the Cypriot legal system? How can the theories of Kelsen and Hart be applied to Cyprus? Even if they can be applied, are they the best way to describe the Cypriot legal system and its development?

Of particular interest are the following topics. What type of Constitution was the 1960 Constitution? Was it inevitable that it would fail? In the event of a failure of this Constitution, what would the consequences be? Then there is the doctrine of necessity, as developed and applied by the Supreme Court of Cyprus in 1964 in the famous case of Ibrahim.[6] Ibrahim was the (then) existing legal system’s answer to the difficulties and breakdown of the 1960 Constitution and, as we shall see below, has been cited in other jurisdictions confronted with similar problems of legal disruption and discontinuity. How does this compare with applications of doctrines of necessity elsewhere and what is the relationship between this allegedly domestic doctrine of necessity on the one hand and notions and concepts of international recognition relating to the Republic of Cyprus on the other? There is also the Turkish invasion of the 1974 and the consequent occupation of more than one-third of the territory of the Republic, which continues to-date. A puppet regime was set up in the occupied area by Turkey, which has received no international recognition but which, though heavily dependent on Turkey, has continued to function on a de facto basis within the occupied area. How has this situation impacted upon the validity

of the political order and legal system of the Republic of Cyprus, which of course are premised on legality, domestic and international, and which have retained their legitimacy, validity and integrity despite the realities on the ground (which as a matter of fact confine the Republic’s political order and legal system to the non-occupied area of Cyprus)? Certain de facto, everyday and routine arrangements in the occupied area have received recognition and efficacy on the basis of the Namibia principle.[7] Indeed, this principle has been extended to cover not only ad hoc acts and transactions in the occupied area but also clearly unlawful institutions and processes (since they belong to and are operated by an illegal regime). How have such developments impacted on the legal system and political order of the Republic of Cyprus, whether from the viewpoint of the system itself or from the viewpoint of outsiders? Finally, there is the agreement of the two Cypriot Communities, Greek and Turkish Cypriot, to adopt a federal system of government, which will replace both the 1960 Constitution and what currently exists in Cyprus. Will the adoption and implementation of the federal system entail the extinction of the Republic of Cyprus and the emergence of a new State? Or will the Republic of Cyprus continue to exist and be the same legal person as the one which emerged in 1960 and was admitted to membership of the United Nations and of the European Union in 1960 and 2004 respectively?[8]

Despite its continuing political problems, the Republic of Cyprus is now a full member of the European Union, having secured its accession during 2004. Thus, in addition to common law (in respect of most areas of civil and criminal law) and administrative law (as developed and practised in continental Europe), we now have what one might call European Law, primarily in the sense of the numerous Regulations and Directives emanating from the European Union which become an integral part of the municipal law of Cyprus. A new level of legal activity and a new type of legal discourse have been added to what used to be the traditional Cypriot legal system. The result is that the Cypriot legal system has developed into a

complex amalgam consisting of many different juridical traditions and components, in stark contrast to its narrow common law parameters just before Independence.

All in all, the constitutional law and practice of Cyprus constitute a subject of great interest, both in terms of substantive content as well as in terms of approach and methodology.

This has not been an easy book to write, and occasionally I doubted the wisdom of my decision to do so. The Cyprus problem is a very politically controversial topic, and I am a Greek Cypriot who has indeed represented the Republic of Cyprus before various international and foreign Courts and tribunals, advocating some of the positions set out in this book. I have also taken part over the years in various intercommunal talks (on behalf of the Greek Cypriot side) relating to the future of Cyprus and the reconstruction of the political and legal system of the country. The fear of allowing political inclination to cloud legal judgment is ever present and I wonder whether enough has been done to neutralise the dangers. I hope that the answer to this question is “yes” – but, ultimately, this matter is not for me but for others to judge.

A. CONSTITUTIONAL PERSPECTIVES

AND DEVELOPMENTS

THE ZURICH AND LONDON AGREEMENTS

AND THE 1960 CONSTITUTION

Overview

Ruled by the British since 1878, Cyprus officially became a Crown Colony in 1925.

By 1955, approximately four-fifths of the local population comprised Greek Cypriots and approximately one-fifth comprised Turkish Cypriots.

In 1955, the Greek Cypriots rose in armed struggle against the British and demanded Union with Greece. The British procured the involvement of Turkey in the overall dispute. Ultimately, on 11 February 1959, the Greek and Turkish Governments reached the so-called Zurich Agreement in an attempt to resolve the crisis.

The 1960 Constitution of the Republic of Cyprus has its roots in the Zurich Agreement, which in turn was incorporated in the agreements reached between the Greek and Turkish Governments and that of the United Kingdom at a Conference in London on 19 February 1959. On that date also the representatives of the Greek and Turkish Communities of Cyprus “accepted” the accords reached. Eventually these agreements were embodied in three treaties and a Constitution, usually called the 1960 or Zurich Constitution, which were all duly signed in Nicosia on 16 August 1960 and thus became the legal framework of the Republic of Cyprus.[9]

Was the Zurich and London settlement an imposed one, or was it freely accepted by the Greek and Turkish Cypriots?[10] On this, traditionally one of

the most furiously contested issues of the Cyprus problem, as on so many other issues, Greek and Turkish Cypriots have disagreed. But the following points are not open to dispute. The Zurich accord was a compromise negotiated between the Greek and Turkish Governments in the absence of Greek and Turkish Cypriots. Meetings between the Greek and Turkish foreign ministers had begun in early December 1958 at the UN and continued at the NATO meeting in Paris in late December 1958. The talks between the Greek and Turkish Governments continued throughout January 1959, and in early February 1959 the then Greek and Turkish Prime Ministers, C. Karamanlis and A. Menderes, met at Zurich where they drew up the outlines of a comprehensive settlement of the Cyprus dispute.

The Agreement was announced in a joint Graeco-Turkish communiqué issued on 11 February 1959. The British Government, which had already made it clear that any agreement reached between Greece and Turkey would be acceptable to it provided it could maintain sovereign bases and a military presence on the island, was informed, and it was only then that Greek and Turkish Cypriot leaders were fully brought into the picture. The Greek Cypriot leader Archbishop Makarios, at a meeting in Athens with the Greek Government, accepted, with some reluctance, the principles of the Graeco-Turkish accord, since it was now clear that outright rejection of the plan and continuation of the armed struggle against the British would mean partition of the island. Even so, as he himself said later, he expected further negotiations to take place at the London Conference, which had already been convened. At this Conference at Lancaster House in February 1959, Archbishop Makarios did indeed raise a number of objections and expressed strong misgivings with regard to certain provisions of the Zurich Agreement. He accepted the Graeco-Turkish accord as a basis for the solution of the Cyprus problem, he stated, but he could not accept without further discussion the details of the Zurich Agreement in which he had had no input. But the Greek Prime Minister told him that further negotiation was not possible, that the Greek Government had committed itself in the eyes of its allies and could not go back on its word, and that if the Archbishop did not accept the Zurich Agreement as it stood, Greece would abandon both him and Cyprus. The Turkish and British Foreign Ministers could not accept any further discussion or negotiation. They demanded that the Archbishop should either accept the Agreement or reject it, in which event, it was already clear, Cyprus would in all likelihood be partitioned.

It does therefore appear that whatever the juridical validity of the overall settlement, and irrespective of whether subsequent Greek Cypriot attempts to amend the constitutional arrangements should have been embarked upon given international realities and domestic tensions, the Zurich and London Agreements were basically negotiated and concluded between Greece and Turkey and not between the Greek and Turkish Cypriots. The Zurich Agreement was therefore “essentially an imposed settlement”,[11] imposed by the Greek and Turkish Governments, and this fact must be borne in mind in attempted explanations of the constitutional and political breakdown of 1963. At the same time, the position has been supported that, whether it was “essentially imposed or not”, the 1959 settlement and the resulting 1960 Constitution were the best that could be achieved in the circumstances, particularly in view of the dangers that clearly lay ahead in the event of non-agreement.

Treaties

In any case 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. In fact, the Treaty of Alliance and the Treaty of Guarantee (but not the Treaty of Establishment) were granted constitutional force pursuant to Article 181 of the 1960 Constitution.

The Treaty of Establishment, between the United Kingdom, Greece, Turkey and Cyprus, recognizes the establishment of the Republic of Cyprus and provides that its territory “shall comprise the Island of Cyprus ... with the exception of the two areas”, which remain “under the sovereignty of the United Kingdom”. This Treaty of course secures British military interests in

the area, and in effect provides for the retention of British influence in the Middle East.

The Treaty of Alliance was concluded between Cyprus, Greece and Turkey. By this the parties undertook to resist any attack or aggression directed against the independence or territorial integrity of Cyprus, and for this purpose it was further provided that a tripartite headquarters should be established and that Greek and Turkish military contingents, consisting of 950 and 650 officers and men respectively, should be stationed in Cyprus.

Finally, by the Treaty of Guarantee, the most controversial of the three Treaties, concluded between the United Kingdom, Greece, Turkey and Cyprus, union with Greece (“enosis” in Greek) and partition (“taksim” in Turkish) were excluded and prohibited, Cyprus undertook the obligation to maintain its independence and the constitutional order created by the 1960 Constitution, and the three Guarantor Powers, namely the United Kingdom, Greece and Turkey, guaranteed the continuation and maintenance of “the state of affairs established by the Basic Articles of its [i.e. Cyprus’] Constitution” as well as the independence and territorial integrity of Cyprus, reserving to themselves the right to take steps for the restoration of the status quo ante in case of any change or disturbance or in the event of a breach of the provisions of the Treaty. The final clause of the Treaty of Guarantee, which was later to be invoked by Turkey in justification of its invasion of 1974, provides that, in the event of a breach, “Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance” of the Treaty’s provisions. In so far as common or concerted action did 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 was to play a significant role in subsequent developments.[12]

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 the Constitution’s complexity, overwhelming (bi)communal character and sui generis provisions.[13] Its central principles were, first, that the State being set up was a bicommunal one and, second, 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.

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 provides for an exclusively communal level of political and social activity. It does so by demarcating special communal competencies and jurisdictions, and by establishing organs and structures which are purely communal in representation and function. Thus, provision is 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 considered as being of purely communal nature.[14] With regard to all these matters, the two Communal Chambers are declared to have power to impose direct taxation on the members of their respective Communities and are also given competence both to direct policy within their communal domain and to exercise administrative powers in the manner that, and through such persons as, may be provided by a communal law, provided that no law or decision of a Communal Chamber could 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, are 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 are addressed.

In this connection one should also note the provision regarding the creation of separate municipalities in the five largest towns of Cyprus. 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 are accorded rights of special relationship with Greece and Turkey, respectively. It is thus provided that the two Communities have 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 may also provide schoolmasters and clergymen for the functioning of the relevant communal institutions. Education and culture are hence viewed as strictly communal concerns, which in turn means that no state responsibility in this connection is recognised and no effort is made to integrate communal institutions and processes within the scope of state activity. Education in particular is 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 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.

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 Cypriot 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, the President of the House of Representatives (who is a Greek Cypriot) and the Vice-President of the House of Representatives (who is 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, including for instance the right of recourse to the Supreme Constitutional Court on a number of matters and occasions, 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 the Executive, namely that both the President and the Vice-President have, either jointly or separately, the right to 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 of Turkey. It is also 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.[15]

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. Further, the President of the House must 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 “belonged”. 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 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 Cypriot Communities, respectively, taking part in the vote.[16]

The Judiciary

In the area of the Judiciary, authority is vested under the 1960 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 any 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 of the Republic, jointly 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 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 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 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 High Court constitutes also 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 three of the Judges of the High Court.[17]

The Public Service

Under the 1960 Constitution, the Public Service of the Republic was to be composed of Greek and Turkish Cypriots in the ratio of 7:3. This same ratio was also prescribed for the Security Forces, 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 Public Service Commission, seven were to be Greek Cypriots and three Turkish Cypriots. In general, the decisions of the Public Service 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 appointments, 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, 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.

Independent Officers of the Republic

In the case of the “Independent Officers” of the Republic, namely the Attorney-General, the Auditor-General and the Governor of the Issuing Bank, as in the case of the Heads of the Army, the Police and the Gendarmerie, the relevant appointments could by and large be made from either Community. These appointments were to be made by the President and the Vice-President of the Republic acting together but what was significant was that the holder of the office had to have a Deputy belonging to the other Community. Thus, there was to be an Attorney-General and a Deputy Attorney-General, each from one Community, and the same applied to the other independent offices set up under the Constitution.

A Critical Appraisal of the 1960 Constitution

The 1960 Constitution has unique features and striking characteristics which, without exaggeration, virtually put it in a class of its own amongst the Constitutions of the world.[18]

Its principal feature is “Communalism”, and more particularly that the two Communities of Cyprus should retain their political separateness and participate as such in the processes of government and administration. As has already been seen, communal participation in governmental organs under

the 1960 Constitution takes a number of forms. In some it is represented by numerical equality, as in the Supreme Constitutional Court; elsewhere it is based on a fixed ratio that, again, varies with the different organs and departments; and in areas such as the Executive or some of the other independent offices of the Republic, two positions are recognised and set up, and the relevant power is shared between them more or less on a basis of equality.

Another characteristic feature of the 1960 Constitution is that through a multiplication of checks and balances most of the major affairs of state are effectively subject to the agreement or concurrence of the representatives of both Communities. Thus, in the area of the Executive, both the President and the Vice-President have the right to delay decisions in many matters and to veto them in others, and these powers can be exercised either separately or jointly. In this context, as we have already seen, either the President or the Vice-President may veto a decision of the Council of Ministers concerning foreign affairs, defence or security, or return any other decision for reconsideration. The extraordinary executive right of final veto also extends to any law or decision of the House of Representatives or any part thereof concerning foreign affairs, defence or security. Further, the President and the Vice-President have the right, either separately or jointly, to return or refer any law or decision or any part thereof of the House of Representatives back to the House for reconsideration. In such a case, the House of Representatives must pronounce on the matter so returned within fifteen days, and if the House persists in its decision the President and the Vice-President shall then promulgate the law or decision, as the case may be, unless in the meantime they exercise, separately or jointly, the right of veto or their right of reference to the Supreme Constitutional Court so that the question of constitutionality may finally be adjudicated upon. In addition, a number of decisions or acts within the authority of the President and the Vice-President, such as the choice of flag, the promulgation of legislation and of decisions of the Council of Ministers, the appointment of ministers and of many high public officials, and many others, require the agreement or joint action of both. Very significantly, in the legislative area, as we have already seen, three important classes of legislation, namely any attempted modification of the electoral arrangements, the adoption of any law relating to the municipalities and the enactment of any law imposing duties or taxes, require “a separate simple majority of the representatives

elected by the Greek and Turkish Communities respectively taking part in the vote”. Separate two-thirds majorities in the House of Representatives are required for the amendment of those Articles of the Constitution which are in fact capable of amendment. But a great number of the 1960 Constitution’s provisions are designated as “basic” and are declared to be unamendable.

Another obvious and important feature of the 1960 Constitution is the fragmentation of what might be thought to be integral functions and their dispersal among a great number of governmental and communal bodies. To take the most obvious and important example, in the area of the Executive there is a bewildering variety of powers allocated to the various executive organs. There are (i) separate Presidential powers, (ii) separate Vice-Presidential powers, (iii) powers belonging to the President and the Vice-President jointly, (iv) limited executive powers belonging to the Communal Chambers, (v) executive powers vested in the individual ministers and (vi) general executive power “in all other matters” which belongs to and can be exercised by the Council of Ministers. These executive arrangements have no exact parallel elsewhere. The Constitution supposedly establishes a “presidential regime”, but this has been viewed rather sceptically by some commentators, who have deemed fit to describe it as “a vice-presidential one”:[19] so inflated are the powers of the Turkish Vice-President and so great the obstructive potential of his prerogatives, the final and unqualified veto given to him in the vital areas delineated above being but the culmination of what some have regarded as unparalleled constitutional generosity. It might perhaps be argued that since it is the Council of Ministers that is entrusted with general and residual executive power, all other spheres of executive competence being specifically mapped out, it is this body which in reality is the chief executive organ of the State. But this was and indeed is at most the façade, not the reality of power. It is not only that the meetings of the Council are convened by the President and the Vice-President, or even that the two of them are the ones who “ensure” executive power. The most significant provision here is the one that allows the termination of ministerial appointments by the President, in the case of Greek Ministers, and by the Vice-President, in the case of Turkish Ministers; this in turn makes (and inevitably made) impossible the development of genuine collective responsibility.