The Cypriot Advisory Model

6.3.1 The Attorney General: Multiplicity of Roles

and Overarching Competences

The AG has a central position in the Cypriot constitutional architecture, both in terms of allocated powers and roles, as well as implied competences.

The formation of an understanding as to the nature of the office of the Cypriot AG is assisted by certain clarifications. Firstly, the institution is largely personified, since the powers are expressly attributed to the holder of the position. As a corollary, there is a strict separation of the administrative structure (Law Office) that the AG heads and of the powers of the office, with the former functioning under the instructions of the latter and with his/her authorization. Therefore, the actual exercise of power is vested in the AG and not the Law Office.

Secondly, the Constitution in Article 112(1) applied the bi-communal principle with the dual aim of ensuring the equal representation of both communities and also for introducing the element of internal checks and balances along communal lines. In specific, the aforementioned provision requires that the AG is supported by a Deputy AG and that the two officials must come from different communities. Accordingly, the constitutional intention was to have a duality of the office in terms of persons performing the related duties and exercising the relevant powers.

Thirdly, the division of powers between the AG and the Deputy AG is at the same time clear and practically blurred. The AG is constitutionally superior to the Deputy and has the final say in most matters coming within the competences of the office, but the actual application of this hierarchical rule has proved to be complicated with instances of internal disagreements and conflicts that reached their apogee in the dismissal of the Deputy AG by the Supreme Judicial Council for misconduct.^[350]

Fourthly, it must be explained that the institution of the AG, in its duality of holders, is founded on the principle of independence,^[351] according to which the office is concurrently the legal advisor of the executive and independent from it. The inten­tion was to remove sensitive and crucial powers associated with the AG from external influence, thus serving directly the constitutional interest rather than the holders of political power. It is in this sense that the Law Office is independent yet such attribute is to be understood in terms of excluding external influence through the medium of the person that heads that structure, namely the AG assisted by his Deputy. Therefore, the independence of the Law Office is a derivative of the independence of the AG. In effect, the independence is primarily for the AG and the Deputy AG and for the materialization of it, the Law Office is also independent but hierarchically controlled by the AG.

In terms of safeguarding the independence of the AG and the Deputy AG, the Constitution provides for the security of tenure until retirement and for terms of service as a judge of the Supreme Court,^[352] while their dismissal is governed by the same provisions that provide for the dismissal of judges of the Supreme Court.^[353] Therefore, the security of tenure has the result that a change in the office of the President of the Republic does not affect the AG and the Deputy AG that remain in their offices until retirement age.

In terms of the powers of the AG, he/she holds exclusive prosecutorial powers to be exercised in the public interest and numerous other powers as guarantor of the legal profession and the administration of justice.^[355] In specific, the AG has ‘the power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions’.^[356]

Such powers remain immune from judicial review^[357] and certiorari orders^[358] while the suspension of criminal prosecution and the formulation of the criminal charges are equally immune from judicial control.^[359] The AG and the Deputy also have a right of audience in, and shall take precedence over any other persons appearing before, any court [Article 112(3)], provided that the AG of the Republic shall always take precedence over the Deputy AG. Moreover, on the unanimous recommendation of the AG and the Deputy AG, the President of the Republic, ‘remits, suspends or commutes any sentence passed by a Court in the Republic’.^[360] Finally, the AG is ex officio member of the Council of the Cyprus Bar Association and Honorary President of the Cyprus Bar Association,^[361] President of the Legal Council,^[362] Chairperson of the Advocates Disciplinary Board,^[363] and of the Board of the Advocates’ Pension Fund.^[364]

In terms of advising, Article 113(1) of the Constitution states that the AG of the Republic, assisted by the Deputy AG, ‘shall be the legal adviser of the Republic and of the President and of the Vice-President of the Republic and of the Council of Ministers and of the Ministers and shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him by this Constitution or by law’.

6.3.2 The Advisory Role of the Attorney General

As already mentioned, the AG is the legal advisor of the Republic, of the President of the Republic,^[365] of the Council of Ministers and the Ministers themselves. The legal advice of the AG is given either after such request to the Law Office of the Republic on behalf of the State authorities concerned, or ex officio when the AG deems it necessary.^[366]

One important point of clarification relates to the reference in Article 113(1) of the Constitution that the AG is the legal advisor of the Republic. That could be construed as extending the advisory role to the legislature. Nevertheless, considerations about the separation of powers and the fact that the AG is the legal advisor to the execu­tive, render such an interpretation unstable and that is reflected in the constitutional practice and also in the case law.^[367]

However, the fact that the AG is not the legal advisor of the legislature, does not mean that he/she remains inactive on issues relating to constitutionality of laws and decisions of the House of Representatives. In reality, the AG has indirect influence on constitutional matters by way of giving his/her legal advice when assessing the constitutionality of draft bills approved by the executive and then tabled before the legislature during the legislative process.^[368] In particular, the Law Office of the Republic, headed by the AG, is responsible for the legislative review of all draft bills and the majority of regulatory administrative acts (such as regulations and decrees).

In addition, the Law Office delivers opinions to the government and the admin­istrative services of the State, with the view of streamlining their acts and decisions with the Constitution and the laws of the Republic. It is noteworthy that opinions are not generally binding, in the sense that the judiciary is not bound to follow them, and they do not produce direct legal effects. If deemed necessary, and with the approval of the AG, the government may request legal advisory services from third individuals or entities, such as international law firms and academic scholars, provided that the AG oversees the selection and also forms the context of the legal questions for which legal advice is sought.

In terms of representation, another significant feature of the Cypriot example of the advisory role of the Attorney-General, is that the AG’s legal position may be set aside by the executive if they are in disagreement, and the executive may opt to be represented by private lawyers.^[369] This option has been recognized in the jurisprudence.^{[370] [371] Specifically, in Referral 1/12,5 the Supreme Court faced the issue of whether the President of the Republic may assign a case to a private lawyer, following the refusal of the AG to register and proceed with a referral. The referral concerned the constitutionality of the Hydrocarbons (Research, Exploration and Exploitation) (Amending) Law of 2012. It is noted that the law resulted from a bill submitted by members of the House of Representatives, thus it did not fell within the advising competences of the AG.}

The Supreme Court rejected the Attorney-General’s argument stating: ‘The fact that, according to Article 113 of the Constitution, the Attorney General of the Republic becomes the legal advisor to the President, does not imply, in our opinion, an obligation on the part of the President to accept his opinion, especially where, as in the present case, this would deprive him of the right he has [referrals of laws or decisions of the House of Representatives], based on the Constitution of the Republic of Cyprus. Although the Attorney-General had drafted the text of the Law in ques­tion and considered it constitutional, he considered that he could not register and forward the Referral. However, this did not prevent the President of the Republic of Cyprus from being represented by another lawyer of his choice, in order to exercise his constitutional right’.^[372]

A similar issue was decided by the Supreme Court a few months after Referral 1/12, where the President was again represented by a private lawyer after a disagree­ment with the Attorney-General’s legal approach of the issue at hand. Particularly, in Stavrinakis^[373] the applicant was appointed by the President as Deputy Governor of the Issuing Bank of the Republic, understandably having obtained the consent of the AG. His appointment was later revoked by the next President of the Republic as unconstitutional. In the application that challenged the legality of the Deputy Governor’s recall, the President was represented by a private lawyer, as it would be contradictory for the Attorney-General to support the illegality of an appointment which he had previously accepted as lawful.

These findings of the Supreme Court give rise to a series of observations. First, and in the context of Referral 1/12, the President asked for and was given the consent of the Attorney-General before obtaining additional legal advice from another lawyer. However, the Supreme Court answered in the negative as to whether the consent of the AG is necessary, thus implying that opinions—the main method for articulating the AG’s legal advice—are not binding on his constitutionally-provided assignor. Second, and again in the context of Referral 1/12, the registration of a referral, as envisaged in Article 140 of the Constitution, is a privilege akin to a right enjoyed by the President and he/she is not bound by the position or opposition of the Attorney­General, resulting in the possibility of assigning the registration and representation of the President by a private lawyer. Third, in Stavrinakis the Court indirectly reaffirmed the assumption that the opinions of the AG are not binding on the President of the Republic.

Finally, and most importantly, the Attorney-General in the facts that led to Referral 1/12, had actually expressed his legal position on the constitutionality of the text of the law in question by drafting and editing the text. What is noteworthy at this point is the fact that the bill was proposed by the House of Representatives. In general, when the bill is the result of the initiative by a member of the House of Representa­tives, the Attorney-General is excluded from offering his/her legal opinion directly, because such bills could be brought before the Supreme Court by the President on grounds of constitutionality through the Attorney-General.^[374] Thus, the question arises of whether the Attorney General, who is not the legal advisor of the House, constitutionally put himself in a position of conflict of interest when editing the text, especially when his assignor, as per the Constitution, is the President of the Republic. The issue must be seen in the context of the constitutional gap that exists as regards the House of Representatives; that is, the monolithic tendency to rely on the AG as the exclusive legal advisor of the executive in a rigid presidential system and the absence of a constitutional advisory body for the legislature. These factors have resulted in the formulation of a practice where, for the sake of constitutionality, the AG regularly expresses his views on the actions of the House in an informal manner.^[375] This practice is exemplified by the customary cooperation between members of the Law Office and Parliamentary Committees, where members of the Office are invited and attend meetings of Parliamentary Committees, to express their opinion on the constitutionality or other legal questions that may arise during the examination by these Committees of bills proposed by representatives, bills tabled by a minister or by the council of ministers, regulations or bills for the ratification of international agreements.

Overall, the AG concentrates significant powers of constitutional advise as regards the executive, with the courts recognising limits as to the binding effect of such advice. Moreover, the AG is often informally expanding the scope of his/her advising powers vis-a-vis the legislature, thus triggering conflicts of constitutional roles, yet with the intention of securing constitutionality given the lack of normative provisions relating to the existence of constitutional advisory bodies acting for the legislature.

6.3.3 The Cypriot Law Commissioner

In addition to the advisory role of the AG on constitutional matters, in the Cypriot legal order there is the office of the Law Commissioner, another independent institution, that is entrusted with a certain advising capacity but only as regards reforms. Similar to the office of the Attorney-General, the Cypriot Law Commissioner’s advisory role is primarily connected with the executive branch, and its cooperation with the House of Representatives is of a customary and informal character.

Historically, the office of the Cypriot Law Commissioner was first established in 1971 and did not form part of the provisions of the Constitution of 1960. The office was based on the institution of the Law Commissioner as established in the United Kingdom and other Commonwealth Countries.^[376] It is important to note that the Law Commissioner was not established by law but through direct appointment by the President of Republic via a presidential acta and for a fixed term of six years, thus being directly accountable to the President.^[377] This marks a departure from the British model that has a statutory basis and is collective in nature. As a result, the Cypriot legal framework is different and the Office’s powers, functions and duties are defined with reference to the act of appointment.

In specific, the functions of the Office currently include the duty to ensure, firstly, ‘the preparation and submission of suggestions to the President of the Republic, Ministers and/or to any other public official, body, authority, service or person on any matter relating to the Cyprus legal framework, and in particular the modern­ization, simplification, completion, amendment, consolidation, codification and/or revision of national legislation’. Secondly, to ensure ‘the exercise of any other duty or competence entrusted to her by the President of the Republic and/or the Council of Ministers’.^[378] Therefore, the Law Commissioner undertakes her/his duties either ex officio or upon the instructions of the President of the Republic or the Cabinet.

At this point, it should be noted that the Law Commissioner makes ‘suggestions’ on any matter concerning the Cyprus legal framework; thus, she/he does not issue legally binding opinions but mere recommendations. Moreover, in practice, and in order to fulfil her/his competences and duties, the Law Commissioner cooperates closely with the executive, as the Office of the Law Commissioner may prepare bills and may form advisory committees with experts for the preparation and drafting of a new bill and submit it to the relevant minister or the Cabinet for further consideration. In this sense, and by ensuring that their suggestions are in line with the Constitu­tion, the Law Commissioner has an indirect influence on constitutional matters and engages in an advisory process. The focus remains on the reform aspect of advising rather than on specific constitutional advice in concrete and pending matters. At this point it is important to signify that the relationship with the AG remains in effect one of complementing nature, because the endorsement of the proposals by the executive trigger the advisory role of the AG. As a corollary, the AG retains the primacy as regards the function of constitutional advising.

Turning now to the relation between the Law Commissioner and the House of Representatives, it is apparent that in order for the former to realize her/his mission, namely the revision, consolidation, modernization and improvement of the legisla­tion, the close cooperation between the two is necessary. Indeed, the Law Commis­sioner may be asked to appear before a Parliamentary Committee in order to express her/his views on a bill tabled by a minister or the Council of Ministers and prepared by the Commissioner, or even on a bill that was prepared by a member of the House. In addition, a Parliamentary Committee may ask the Commissioner’s suggestions (usually in the form of a report) for the modernization, simplification, completion, consolidation, amendment, codification and revision of a specific topic that needs to be regulated or reformed. In summary, the Law Commissioner is not a body with institutionally secured advising capacity to the House of Representatives. It is, however, a body that cooperates closely with the House, not as its legal advisor, but as a partner with the ultimate aim of revising the law and drafting legislation for securing the rule of law, the democratic principles and respect for human rights. This is a practical solution to the underlying problem of the legislature lacking a fixed point of reference for constitutional advice. Moreover, the issue of separation of powers arises, since the Law Commissioner is appointed by the executive and with terms of reference determined by the appointing authority.

In conclusion, the Cypriot approach to constitutional advise remains fixed on the AG, with the operation of the Law Commissioner representing a positive step towards establishing a secondary advising source related to reform proposals. The constitutionally entrenched role of the AG remains primary and the system remains largely mono-personal, while the advising lacuna related as to the legislative branch remains. The overall effect is the preservation of the institutional weakness of the Cypriot advisory model that further obstructs the realization of the necessary trans­parency, pluralism, impartiality and legitimacy. The next section examines the Greek model with the purpose of comparing the Cypriot model with its primary source of inspiration in public law.

6.4