Introduction

The Cypriot legal system has been eloquently described as a ‘colorful legal mosaic’.^[316] This portrays its non-linear hybridity attributed to the varying degrees of influence from various sources and in different areas of law.^[317] Such ‘mixity’ has strong historic roots.

Historically and prior to the establishment of the Republic of Cyprus in 1960, the island was conquered and occupied by various foreign powers.^[319] It came under the jurisdiction of Great Britain in 1878 and remained a colony until its independence. During this period of British colonialism, the pre-existing Ottoman laws were main­tained. In 1927 British law was extended to Cyprus and the doctrines of common law and equity were incorporated into Cypriot law.^[320] By the end of British colonial rule, Cyprus was a common law jurisdiction but with a long tradition of coexistence of legal traditions and long-lasting remnants from previous periods. Moreover, even today the common law retains its principal place in certain areas, but continental law aspects were introduced and incorporated in Cypriot law making it a unique, sui generis mixed legal system which, however, could not be described as a ‘typically’ mixed one.^[321] The Cypriot legal system is neither a common law system nor a conti­nental system; it is both and none depending on the legal area, thus the description as a ‘mixed mixed legal system’.

The continental and common law traditions find application in a diversified manner in different areas of the law; the former is more strongly present in private, criminal and procedural law and the latter applies mainly in the field of public law.^[322] Nevertheless, public law has not remained insulated from the common law tradition, primarily due to the extensive use of the comparative method and the reliance by the Supreme Court on foreign jurisprudence and academic writings.^[323] Therefore, the mixed nature of the legal system has been a constant characteristic of the Cypriot legal system, with internal diversification as to the intensity of influences and their sources.

In public law, the legal system has had, and maintains, normative, methodological and interpretive influences from the Greek constitutional tradition, but coupled with the perpetual overarching influence of the common law and the doctrine of prece­dent.^[324] Administrative law is founded on the Greek model,^[325] with a codifying law and dense references to both Greek jurisprudence^[326] and academic writings.^[327] Consti­tutional law is more collective as to its sources of inspiration, with notable impact from common law,^[328] while the protection of fundamental rights has been synchro­nised with the ECHR through the consistent reference to the jurisprudence of the Strasbourg court.^[329] Nevertheless, the public law system has shown a strong element of internal organic growth, through the application of the law of necessity^[330] which finds inimitable presence and dominance in the Cypriot legal order. Furthermore, and in general terms, the courts have been extremely open in adopting the compar­ative methodology by boldly citing and discussing foreign legal authorities.^[331] This extrovert and open approach represents one additional characteristic of the Cypriot legal system.^[332]

It must be clarified that the specificities and peculiarities of the constitutional setting^[333] and of its application on the basis of the law of necessity have maintained the centre of gravity on the internal constitutional arrangements. It is in this respect that this chapter assesses the balance, or imbalance, between the openness of the public law system in general and its internal features in relation to the narrowness for constitutional advisory bodies. There is a hierarchically resulting tendency to rely on the Attorney-General (AG) as the exclusive legal advisor of the executive in a rigid presidential system. This creates a series of gaps, the foremost of which is that the AG is not the legal advisor of the legislature, but has indirect influence on constitutional matters when assessing the constitutionality of draft bills by the executive that are then tabled before the legislature. In the event where the bill is the result of the initiative by a member of the House of Representatives, the AG is excluded from offering legal opinion because such bills could be brought before the Supreme Court by the President, through the AG, on grounds of constitutionality (Article 140 Constitution).

The purpose of the chapter is to explore the setting in the Cypriot system as regards constitutional advisory bodies, the rationale behind it and the purposes it serves. The connection between the Greek and Cypriot systems is examined due to the strong influence that the former has had on the latter in a general sense. In specific, the Greek public law tradition has been highly influential in the evolution of Cypriot public law, both in terms of content development and institutional design. Nonetheless, that influence seems to have been absent in relation to the issue of constitutional advice. At the same time, the common law approach that sees the AG’s advisory role as being complemented by a Law Commission has not been followed.

The argument states that the divergence in approach is not supported by modern constitutional realities and by the need for transparency, pluralism, impartiality and legitimacy. Rather, historical and normative hierarchical settings have had a dispro­portionate influence in the structure formations or even their absence. The existence of different models remains closely linked with constitutional perceptions and inflexible normativism. In effect, the Cypriot system, due to design and developments, adopts an isolationist approach in relation to bodies entrusted with constitutional advice.

The chapter is divided into four sections. The first section introduces the Cypriot constitutional setting and is then followed by the approach to the advising model for constitutional matters. The third section focuses on the Greek constitutional advise system and the last section draws conclusions as to the reasons for divergence, the obstacles for change and the need for readjustment.

6.2