Editor’s Note: Today we publish the 2016 Report on Cypriot constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Constantinos Kombos, Associate Professor of Public Law, Law Department, University of Cyprus.
I. Introduction
Cypriot constitutional law[1] has been simultaneously reflective of and respondive to the structural uneasiness[2] in our constitutional arrangements after the collapse[3] of the political compromise between the Greek and Turkish Cypriot communities.[4] Since 1964, the Supreme Court has provided a leeway for the continuing existence of a functional State on the basis of the law of necessity.[5] Constitutional adjudication in Cyprus, therefore, must be considered in terms unique to the anomalous situation that emerged after 1964. The Supreme Court has offered scholars some paramount examples of the application of the law of necessity over the years; for example, as a device to enable the creation of constitutional organs.[6] The retort to law of necessity remains the underlying theme of much constitutional adjudication concerning both the functioning of State organs and the content of constitutional norms.
The year 2016 was no exception. The Supreme Court has revisited such fundamental structural issues as the form of the establishment of the administrative court. At the same time, the Court examined issues relating to the content of constitutional norms on the right to privacy and separation of powers. The Court for a time examined the application of constitutional provisions enabling the dismissal of an independent officer of the Republic, the Deputy Attorney-General, who has the same status and protection as judges of the Supreme Court itself.
This report argues that issues of constitutional law remain directly connected to the application of the law of necessity when it comes to State organs, procedure, and content of. The key to understanding this idiosyncrasy of Cypriot constitutional law is to realize the deep and continuous presence of the Rule of Law and the judicial commitment in safeguarding constitutional law as it is formulated under the law of necessity. That is a difficult balancing exercise given the broadness and the potential force of the law of necessity that has nonetheless been placed within a constitutional State rather than outside.[7]
II. The Constitution and the Court: Past and Present
It is useful to first undertake a brief exegesis of the development of the legal order of the Republic of Cyprus. The classic distinction between “Constitution” and “constitutional law” is especially relevant to Cyprus because the 1960 Constitution must be read in the light of the law of necessity for a full picture. The law of necessity offers the pillar that has sustained the Constitution since 1964.
The Constitution of the Republic of Cyprus was at one time the source of problems that paralyzed the State.[8] The process of decolonization and the transfer of power to a newly formed independent State were wholly decided by Greece and Turkey in the absence of the people and in the physical absence of the legally responsible entity, which was at that moment the colonial power (United Kingdom). The right of self-determination and more importantly the right to exercise primary constitutive power found no expression in the case of Cyprus. This pathology removed from the Constitution one of its fundamental functional attributes: its symbolic status.
The Cypriot Constitution was designed to serve as a compromise between the two communities. It created an independent State, where the rights of the minority were entrenched in a manner and scale that would ensure their effective participation in governance at all levels and in every instance. To attain this objective, the three interested States (Greece, Turkey, and Great Britain) were given extraordinary powers of intervention in case of an arrant constitutional anomaly.
Moreover, the formation of the independent State was designed with a dangerous underestimation about the stability of its nature and functionality (or lack of it). The result of the Constitution-making process was a lengthy, detailed, rigid, and permanent Constitution that has two principles at its epicenter: protected bi-communalism and an encumbered system of multiple checks and balances to ensure that the status quo remains intact. The Constitution “attempted to ensure that both communities would participate fully in the political decision-making process of the island,”[9] yet “a communal distrust permeates the constitutional arrangements”[10] that take the form of a rigid bi-communalism that underpins the vast majority of the provisions of the Constitution ranging from the actual division of competences to the structure of the State.
In terms of the judiciary, the Supreme Constitutional Court was to be composed of three members, a Turkish Cypriot, a Greek Cypriot, and a presiding non-Cypriot (article 133(1)) that would cast the deciding vote.[11] The same institutional “logic” also applied to the High Court entrusted with the appellate jurisdiction over civil and criminal matters (articles 155 and 156), composed of two Greek Cypriots, a Turkish Cypriot, and a presiding non-Cypriot judge with two votes in cases of deadlock (article 153(1)).
From the very beginning, the Republic of Cyprus faced the danger of constitutional paralysis. The apogee of the difficulties was reached when the State budget was in effect vetoed by the required separate Turkish-Cypriot majority in the House of Representatives for reasons other than the intended protection from discriminatory taxation of the minority. A perfect constitutional storm had formed: the Constitution became a tool to paralyze the State; the amendment process was severely restricted, since there could be no recourse to the people with the majority rule excluded; and there was always the permanency of the system that the three foreign guarantor States were tasked to ensure. Specifically, constitutional amendment was possible through a separate community 2/3 majority in the House of Representatives pursuant to article 182 of the Constitution, but in Annex III there is a list of 48 articles that cannot be amended (out of 199 in total; only article 23 relates to a fundamental human right, that of property). These provisions, of a crucial bulk, are essentially eternal clauses; they include every article embedded in bi-communalism. The deadlock led President Makarios to propose 13 amendments to the Constitution that were rejected by Turkey.[12]
After a period of tension and armed confrontation between the two communities, the Turkish-Cypriots withdrew from the government, thus rendering the executive, legislative, and judicial branch incapable of taking any decision whatsoever. The emerging cul-de-sac finally made any constitutional amendment impossible and excluded resorting to the people’s pouvoir constituent since the majority rule could not apply. An existential dilemma was created, as a corollary: to follow the letter of the Constitution or to resort to the only constitutional alternative that would enable the functioning of the State until a political compromise was reached. This development, dangerous for the survival of the Republic, led to the introduction of legislation (Law 33/64) adopted by the House of Representatives in the absence of Turkish-Cypriots members.
The decision in Mustafa Ibrahim then had as its backdrop the constitutionality of the Administration of Justice (Miscellaneous Provisions) Law 1964 (Law 33/64).[13] The legislation merged two constitutionally provided for appellate courts (Supreme Constitutional Court and High Court) into a new five-member Court, the Supreme Court.[14] Their merging of competences was accompanied by an alteration of the composition formula. The new Supreme Court was to consist of only Cypriot judges, given the withdrawal of the foreign judges and a vast majority of Turkish-Cypriot judges.
The three Greek Cypriot members of the Supreme Constitutional Court invoked in the Ibrahim judgment the doctrine of necessity to justify the establishment of the new court. In their separate concurring opinions, the judges highlighted the extant emergency in Cyprus and the threat to the survival of the State.[15] In an attempt to summarize the three opinions, the broader findings converged on the following points: the Constitution did not expect a constitutional crisis that could endangered the existence of the State, thus lacking any provisions to effectively deal with the situation; a declaration of a state of emergency provided for in article 183 of the Constitution would not have sufficed to address the problematic situation, yet the deployment of the law of necessity was a product of the imposed and rigid Constitution; the law of necessity was thereby integral to the Constitution, implied in article 179 that designates the Constitution as the supreme source of law; the law of necessity was of an intra-constitutional nature; and the Court was, therefore, obliged to give a ruling and could not deny exercise of its jurisdiction.[16]
The decision in Ibrahim had established that the requirements for the law of necessity include: the existence of an urgent and unavoidable need or exceptional threat to the existence of the State that can be objectively established; no other alternative; the measures adopted are proportionate to the need; the deployed measures are temporary and apply for as long as the emergency exists; the legality of such measures is subject to judicial scrutiny; and the burden of proof is placed on the side invoking the doctrine of necessity. Therefore, the doctrine is to be used as a measure of last constitutional resort and as such only in extreme circumstances. The doctrine demands a narrow judicial approach, but intense scrutiny.
It is within this context that any analysis of constitutional developments in Cyprus must take place, considering that the law of necessity is present every time that the Supreme Court exercises its jurisdiction and can be further inherent in the nature of a case.
III. Constitutional Controversies
The Supreme Court for the first time examined the application of the constitutional provisions enabling the dismissal of an independent officer of the Republic, namely the Deputy Attorney-General.[17] Such an official enjoys the status and constitutional protection identical to that afforded to judges of the Supreme Court.[18] The provisions relevant to this case required that a “judge of the High Court may be dismissed on the ground of misconduct” by a special composition of “a Council consisting of the President of the Supreme Constitutional Court as Chairman and the Greek and the Turkish judge of the Supreme Constitutional Court as members.” It became apparent that the law of necessity applied to reformulate the relevant Council, which had been impossible to function since 1964. The application for the dismissal from office was filed by the Attorney-General against the Deputy after his statements in a press conference. The Deputy, in his remarks, dismissed the initiation of a criminal investigation into alleged corruption.[19] Moreover, he made accusations to the effect that it was the Attorney-General who acted in a corrupt manner, without producing evidence. This saga provided the background for a constitutional crisis that was unprecedented in Cyprus.
It was the first time that an application for the dismissal of a public official enjoying constitutional protection identical to that afforded to judges of the High Court was brought before the Court by the Attorney-General,[20] although there was a procedural regulation for the dismissal of lower court judges, which had been applied in at least one case in the past.[21] The Court issued a procedural regulation just after the application for dismissal against the Deputy Attorney-General, which was also to regulate all pending applications for the dismissal of public officials.[22] The Court held that retroactivity in this instance was for the benefit of the Deputy Attorney-General since his legal rights were not affected, and the Court could have regulated the matter in an ad hoc manner even in the absence of the regulation.[23] It also held that the lack of compliance of the filed application with the now established procedure in terms of relevant documentation could not be fatal to the process. The discrepancies were not deemed to be substantive procedural defects.[24]
Second, the Court had to provide a definition of the key term “misconduct” and decide on the burden of proof and the required legal prerequisites for such a procedure. Namely, whether a procedure for dismissal followed criminal or administrative law burden of proof. The Court held that misconduct includes actions outside the exercise of the public office and it means “behavior that is so bad, so reprehensible that is, as to make the person who is accountable for this, unable to continue to perform the duties of his office or creates reasonable doubts to others, objectively judging, as to the suitability of the person to exercise the duties of the office with honesty, fairness and for the public interest.”[25] The burden of proof was found to be on the person filing the application and the criterion for establishing misconduct was objective. The procedure is disciplinary in nature and not within the realm of criminal law, therefore the element of mens rea does not apply.[26]
Third, the Court could only approve or dismiss the application. The only available sanction in the event of approval was an immediate dismissal from office, which limits the discretion available to the Court. It held that any finding of misconduct must be the result of intense judicial scrutiny and subject to the principle of proportionality. The Court concluded the Deputy Attorney-General acted in a totally inappropriate manner that amounted to misconduct under article 153 of the Constitution. The Court ordered an immediate dismissal of the Deputy office, and subsequently and in separate criminal proceedings, a criminal court found him guilty of corruption and imposed a custodial sentence that is now a matter of appeal before the Supreme Court.[27]
As an aside, there was also a Supreme Court decision in 2016 in a case of a private individual who filed an application for the dismissal of the Attorney-General from office on the basis of the newly introduced procedural regulation of 2015.[28] The Court held that the applicant did not have locus standi as the Constitution does not provide for private applications and any interpretation to that effect would amount to an introduction of actio popularis. The Court stated in obiter dictum that the President of the Republic could have standing to file such an application so that the Attorney-General is legally accountable.
IV. Major Cases
The Supreme Court exercised administrative jurisdiction on the basis of the law of necessity and through Law 33/64 that was preserved under article 146 of the Constitution for the Supreme Constitutional Court, until the establishment of the Administrative Court.[29] But the latter Court caused concerns: whether the new specialized court is constitutional;[30] whether the law of necessity ceased to exist; and whether the Supreme and Administrative Courts are compatible. The Administrative Court held that the law of necessity continues to apply. But the heavy workload of the Supreme Court, delays in the administration of justice, and binding EU law obligations necessitated the establishment of the new Court. Needless to say, this reasoning is suspect because there were arguably other solutions available to a backlog. The decision also impacts the rationale of the law of necessity.
1. Separation of Powers
The Supreme Court also considered two of separation of powers cases in 2016 concerning a challenge to primary and secondary legislation regulating Sunday trading hours.[31] In the first case,[32] the House of Representatives passed into law a private member’s Bill[33] that amended existing legislation on the matter of Sunday trading hours (Laws 155(Ι)/2006, 68(Ι)/2007, 6(Ι)/2011, and 36(Ι)/2015). The effect of the Law was that shops remained closed on Sundays unless they could satisfy requirements on the basis of location, the size of a shop, and type of commercial activity. The President of the Republic referred the Law in question to the Supreme Court for a review pursuant to article 140 of the Constitution. The Court considered the case in relation to the principle of separation of powers and articles 25 and 28 of the Constitution that guarantee the right to practice any profession or to carry on any occupation, trade, and business and the principle of equality, respectively. The Supreme Court held that although the legislature has the exclusive authority to legislate on all matters under article 61 of the Constitution, legislation must be compatible with the principle of separation of powers that is diffused and implied in the Constitution. The Court focused on the nature of the matter regulated by the relevant Law and found that its content has its center of gravity in the executive branch rather than in the legislative. The reason was that the nature of the regulated activity was akin to administrative action applicable in individualized cases and as such pertained exclusively to the executive branch. The Court, therefore, found the Law unconstitutional.
Immediately afterward, the House of Representatives rejected regulations, in the form of secondary legislation issued by the executive, which enabled the opening of shops on Sundays. The President made use of article 139 of the Constitution relating to the recourse in any matter relating to a conflict or contest of power or competence between the House of Representatives and the President. The regulations do not require Presidential signature, therefore the use of the primary procedure that is a reference for examination of constitutionality under article 140 of the Constitution was not a constitutionally available option. The argument was that since the Supreme Court had ruled on the matter in Reference 1/2015 and found that the legislature acted in breach of the principle of separation of powers, then as a corollary, the legislature was preempted from rejecting secondary legislation in which the will of the executive on the same matter. Put differently, the legislature was preempted from interfering with the exercise of the executive power on the matter of shopping hours on Sundays. Nonetheless, the Court rejected the application by the President because it was submitted after the deadline of the thirty days that the Constitution requires in article 139 (4). The outcome is that the issue of Sunday trading remains to date without regulation given the fact that the legislature has no competence and the executive can only intervene through secondary legislation that the legislature rejects.
2. Human Rights
The Supreme Court further examined a criminal appeal involving the right to privacy. The right to privacy is protected in Cyprus under article 15 of the Constitution and article 8 of the ECHR. The case concerned an alleged entrapment of the accused by the prosecuting authority in criminal proceedings for exercising the profession of real estate agent without a license, in violation of Law 71(Ι)/2010.[34] A representative of the prosecuting authority was standing outside the offices of the accused and looking at window advertisements of properties when an employee approached him and asked if he could offer him assistance. The representative indicated that he was interested in purchasing an apartment, gave a false name, did not disclose his identity, and only subsequently revealed that he was there to investigate complaints against the accused for violation of the relevant legislation. The Court held that such actions did not amount to entrapment given the fact that the criminal offense was already adequately proved by the maintenance of a professional establishment that advertised the offering of services of real estate agency. The right to privacy includes professional premises but is limited by the public interest to prevent crime provided that any such action is proportionate. What is interesting in this case is that the Court reached the preceding conclusions after discussing in detail numerous decisions from other jurisdictions,[35] thus confirming the long tradition of openness and “catholicity”[36] of the Cypriot legal system especially as regards the definition of the content of fundamental rights.[37]
V. Conclusion
Before 2016, the Supreme Court examined numerous issues directly related to the economic crisis, including pay cuts and the bail-in for all unsecured deposits in the two main Cypriot commercial banks. In 2016, constitutional adjudication in Cyprus seems to have returned to normality with the Court having to examine constitutional matters that primarily concerned general application of the Constitution in economically “neutral” issues. This return to normality is, however, subject to the qualification that Cypriot constitutional law remains either directly or indirectly the product of a constitutionally abnormal context due to the doctrine of necessity. But adherence to the rule of law and the strict interpretation of the conditions governing the application of the law of necessity remain important. The Supreme Court will soon deliver judgment in 12 references concerning the principle of separation of powers in the year 2017. The framework for constitutional adjudication has been defined, and it remains to be seen how the Courts will react.
[1] A. Loizou, The Constitution of the Republic of Cyprus (Nicosia, Cyprus, 2001); C. Kombos, The Doctrine of Necessity in Constitutional Law (Sakkoulas, 2015); C. Tornaritis, Cyprus and Its Constitutional and Other Problems (Nicosia, 2nd ed., 1980); S. Papasavvas, La justice constitutionnelle à Chypre (Economica, 1998); C. Paraskeva, Cypriot Constitutional Law: Fundamental Rights and Freedoms (Nomiki Vivliothiki, 2015).
[2] Described by De Smith as being conceived “by a constitutionalist and a mathematician in nightmarish dialogue”: S.A. De Smith, The New Commonwealth and Its Constitutions (London, Stevens, 1964), p. 284.
[3] P. Polyviou, Cyprus on the Edge. A Study in Constitutional Survival (Nicosia, 2013), pp. 5-26.
[4] On the historical aspect see S. Kyriakides, Cyprus: Constitutionalism and Crisis Government (University of Pennsylvania Press, 1969); P. Polyviou, Cyprus: The Tragedy and the Challenge (Washington, D.C.: American Hellenic Institute, 1975).
[5] See The A-G of the Republic v. Mustafa Ibrahim [1964] CLR 195. See P. Polyviou, Ibrahim: The Doctrine of Necessity and the Republic of Cyprus (Nicosia, 2015).
[6] Kombos, supra n.1, pp. 173-238.
[7] See Kombos, supra n.1, pp. 216-228; Polyviou, supra n. 6.
[8] Tornaritis, supra n.1, pp. 54-66.
[9] M. Stavsky, “The Doctrine of State Necessity in Pakistan” (1983) 16 Cornell Int’l L.J. 341, p. 356.
[10] S.A. De Smith, The New Commonwealth and Its Constitutions (London, Stevens, 1964), p. 284.
[11] C. Kombos, “The Judiciary in Federal Systems,” in A. Krispi and A. Constantinides, The Cypriot Problem in Evolution (Athens: Sakkoulas 2010), pp. 81-113.
[12] Emphasis added. Note that the amendment proposals were just invitation to negotiation and were not a unilateral act of imposed amendment. See Tornaritis, supra n. 1, pp. 67-73.
[13] The A-G of the Republic v. Mustafa Ibrahim [1964] CLR 195.
[14] See articles 133-165 Constitution.
[15] The A-G of the Republic v. Mustafa Ibrahim [1964] CLR 195, pp. 201-2.
[16] For full analysis see Kombos, supra n.1, pp. 151-72.
[17] Application by Attorney-General for the Dismissal of Deputy Attorney-General, Application 1/2015, 24th September 2015; Application by Andreas Tryfwnos, Application 1/2016, 30th January 2017.
[18] Articles 112 & 153, Constitution. Note that these provisions refer to the High Court that was substituted, as was the Supreme Constitutional Court, by the new Supreme Court through The Administration of Justice (Miscellaneous Provisions) Law 1964 (Law 33/64).
[19] The conduct suspect of corruption was found by an independent criminal investigator.
[20] A previous application was filed by an individual against the then Attorney-General and was dismissed by the Supreme Court on procedural grounds, namely erroneous filing of the application and lack of a specific procedural regulation: Papasavvas v. Attorney-General (2003) 3 CLR 115.
[21] There was a previous instance where a judge of the Industrial Disputes Tribunal had been dismissed (Case Kamenou, 19/9/2006) where the Court applied Procedural Regulation no.3 of 2003 that related to the dismissal proceedings against judges of the lower courts.
[22] Procedural Regulation regarding the jurisdiction of the Supreme Council of 20/5/2015, published in the Official Gazette on 22/5/2015.
[23] Application by Attorney-General for the Dismissal of Deputy Attorney-General, Application 1/2015, 27th May 2015 (intermediate decision).
[24] Ibid.
[25] Application by Attorney-General for the Dismissal of Deputy Attorney-General, Application 1/2015, 24th September 2015 (decision on the merits).
[26] Ibid.
[27] Case Number 9208/15, Erotokritou et al. 8th February 2017.
[28] Application by Andreas Tryfwnos, Application 1/2016, 30th January 2017.
[29] 8th Amendment of the Constitution (Law 130(I)/2015).
[30] Charalambides et al. v. Republic (Case 1814/12), 8th October 2016 (Administrative Court).
[31] President of the Republic v. House of Representatives, Case 1695/2015, 28th March 2016.
[32] President of the Republic v. House of Representatives, Reference 01/2015, 3rd December 2015.
[33] Law on the Regulation of the Shops (amending) (no.4) of 2015.
[34] Cyprus Real Estate Agents Association v. Berriman Properties et al. Criminal Appeal 127/14, 8th July 2016.
[35] Eight decisions of the ECtHR and English Courts as well as two references to academic writings: Teixeira de Castro v. Portugal (1998) 4 BHRC 533; Saunders v. United Kingdom [1997] 23 EHRR 313; Niemietz v. Germany, Appl. No. 13710/88, 16.12.1992; R. v. Loosely (2001) 4 All E.R. 897; Edwards and others v. The UK, Application No. 39647/98 και 40461/98, 27.10.2004; Gammon (Hong Kong) Ltd v. A.G. (1984) 1 All E.R. 347; Τhe Statue of Liberty (1968) 2 All E.R. 195.
[36] Defined as “the capacity to draw from different sources” by Lord Justice Laws, “The Common Law and Europe,” Hamlyn Lecture 27/11/2013, available at http://www.nottingham.ac.uk/hrlc/documents/specialevents/laws-lj-speech-hamlyn-lecture-2013.pdf, p. 2.
[37] C. Kombos, The Impact of EU Law on Cypriot Public Law (Sakkoulas, 2015), pp. 1-6, 33-46.
Comments
One response to “Developments in Cypriot Constitutional Law: The Year 2016 in Review”
Very one sided account of events 1959-1963