Reform?
By virtue of its ‘mixity’, the Cypriot public law is characterized by the strong influences from the Greek constitutional traditions, as well as overarching influences of the common law.
Thus, the isolationist approach adopted in relation to the bodies entrusted with constitutional advice marks a stark contrast to the general openness of the public law system. Specifically, the constitutional advise is fixed on the AG, who concentrates significant powers of constitutional advise as regards the executive in a mono-personal manner. Sometimes, these advising powers of the AG informally expand so as to cover the legislature, thus triggering conflicts of constitutional roles and separation of powers, yet with the intention of securing constitutionality given the lack of normative provisions relating to the existence of constitutional advisory bodies acting for the House of Representatives. The office of the AG was established pro-independence and continues to function in a similar way, without any adaptations to meet modern constitutional realities. The operation of the Cypriot Law Commissioner represents a positive step towards establishing a secondary advising source and presents a practical solution to the underlying problem of the legislature lacking a fixed point of reference for constitutional advice. However, the functioning of the Law Commissioner does not resolve the institutional weaknesses of the Cypriot advisory model.The Greek advisory model, on the other hand, differs significantly from the Cypriot system. The Legal Council of the State, a collective organ entrusted by the Hellenic Constitution with primary constitutional advisory role, constantly evolves through the adoption of enabling legislation and regulations, which at the same time secure the independence and impartiality of its members. The mixed organization system of the body, and especially the operation of offices in situ at ministries and public law entities, offer guarantees of specialization and expertise, and secures the immediate and effective response to the needs of the administration, as well as of the Parliament.
Additionally, it ensures the public interest and the legitimacy of administrative and legislative action. Therefore, while the Greek model cannot be used as a prototype to be transplanted to the Cypriot system due to their different historical and normative settings and divergent constitutional perceptions, the Greek model can be used as a point of reference for opening up the debate due to its broad influence in Cypriot public law.The Cypriot approach is not supported by modern constitutional realities and by the need for transparency, pluralism, impartiality and legitimacy. Rather, historical and normative settings have had a disproportionate influence in the structure formations and the existence of different models remains closely linked with constitutional perceptions and inflexible normativism. There is need for reform that must touch upon the role of the Attorney-General. The reform can include the institutional setting-up, either by law or through the internal regulation of parliamentary affairs, of an advising body for the legislature. This will fill in the existing institutional gap and will remove the conflicting official advisory role of the AG towards the executive from the often informal advisory role towards the legislature. Moreover, there can be a clear separation of the advisory and wide prosecutorial roles of the AG, in order to decentralize the wide spectrum of competences that are now exercised solely by the AG. This would be promoting efficiency and would be in closer proximity to the constitutional reality under the law of necessity since the bi-communal element has been absent for decades. In addition, the reforms can include the introduction of pluralism in constitutional advising through the distinction between concrete specific advice and abstract advice aiming at reforms. The former and as regards the executive can remain with the AG or the newly set up collective body entrusted with such powers in the case of splitting up of the competences of the AG.
As regards the abstract advising for reforms, the office of the Law Commissioner can be strengthened and can follow the collective membership approach on the basis of legislative formation, thus moving away from the executive branch and closer to the British and Greek approaches.Constitutional advising forms an integral part of the constitutional operation and needs to be institutionally clear, transparent and free from political intervention. It must include a clear separation of functions based on the distinction between abstract and concrete advising functions. The Greek and British systems have been highly influential for the Cypriot legal system but in the area of constitutional advising that influence has been minimal and guided by constitutional provisions. However, the law of necessity has transformed the constitutional reality and the important function of constitutional advising needs to adjust to this fact. It is time to return to the drawing board and take into account the usefulness of legal systems with historical and conceptual proximity to the Cypriot legal order.