The Idiomorphic Constitution of Cyprus
The Cypriot constitutional system is peculiar in its inception and approach, and also unique in its application.[334] It represents an instance of external formulation with rigid structure and inflexible substance and it has resulted in failed constitutional experimentation that startlingly remains in force for decades through the law of necessity.[335] The Cypriot constitutional design provided for the application of the bicommunal principle in all aspects of constitutional organization, in conjunction with the application of a notion of checks and balances, as well as the strong presence of the principle of separation of powers.
In specific, the Constitution of 1960 was granted and was the result of an international political compromise that lacked the direct application of the people’s constituent power.[336] Therefore, it can be classified as an externally inspired and imposed[337] Constitution that is often and misleadingly described as a ‘constitution octroyee’.[338] The predominant principle is that of constitutional bi-communalism,[339] in the form of two integral communities, namely the Greek and the Turkish. This principle operates as the structural pillar and the organizational axis for the constitutional functioning.
In terms of constitutional genesis and design,[340] it is argued that the Cypriot Constitution is the result of external imposition by Greece, Turkey and the United Kingdom. The preferred process was complex and multi-layered. Firstly, it took the form of predesigning the essential principles of the Constitution that were to be accepted without any room for discussion. Secondly, the founding constitutional principles were to form the skeleton of the Constitution without any intervention space for the people. Consequently, the externally determined founding principles were simultaneously restraining and binding the constituent authority.[341] Thirdly, the system is imposed in another and more important way relating to the intended permanency of the original arrangement.
The strict limitations on the amendment procedure,[342] governed by Article 182 of the Constitution, exclude 48 out of the 199 articles from amendment thus constraining secondary constituent power. Therein are embedded the founding principles, thus primary constituent power was limited in decisional terms and absent in procedural terms. There was no referendum or a constituent assembly and the terms people and popular sovereignty remained absent in the constitutional text. Instead, a drafting Committee was established that was bound to function within the founding parameters and in which there were participants from Turkey and Greece. Moreover, the imposed nature of the Constitution is further strengthened by the fact that two of the three founding treaties (Treaty of Guarantees and Treaty of Alliance) form part of the constitutional text pursuant to Article 181 of the Constitution and on the basis of Annexes I and II respectively. In that regard, special attention must be paid to the Treaty of Guarantees whereby the United Kingdom, Turkey and Greece have a duty to guarantee the constitutional arrangements as created by the fundamental articles of the Constitution.Therefore, the Cypriot Constitution is the result of external design with intended permanency and without popular endorsement. The preceding characteristics of the process of constitutional genesis impacted on the advice issue because the subsequent introduction of the law of necessity in effect overcomes the constitutional provisions and the intention of the framers due to the paralyzing effect of the rigidity of the provisions and the withdrawal of the Turkish-Cypriots from the organs of the State. Advice is subsequently bypassing constitutional intention as that was imperfectly formed and is reflecting the adjustment made through case law and on the basis of the law of necessity. As a corollary, any advisor has to go beyond the constitutional text and the purposive or even originalist approaches and must focus on the judicially introduced doctrine of necessity. This clearly creates complexity in terms of constitutional advice and represents a rather unique example of constitutional operation.
Advice follows constitutional review findings in a way that goes beyond the compliance with jurisprudence that is the norm in constitutional review systems. In the Cypriot example, advice is founded on the law of necessity both in order to enable the advisor to exercise the role of the AG and also in terms of the foundational origins, structure and content of the constitutional provisions.The system collapsed in 1963 with the withdrawal of Turkish officials from their offices.[343] The result was that in general the constitutional provisions became impossible to be complied with, thus leading to institutional paralysis and to an existential dilemma for the State: adherence to the letter of the constitutional requirements or functionality of the constitutional organs. The constitutional system opted for the latter and relied on the law of necessity that was the basis for the adoption of Law 33/64[344] and the subsequent decision of the newly established through that law Supreme Court.[345] In the landmark decision in Ibrahim[346] the Court adopted the maxim salus reipublicae suprema lex esto and proceeded to rule that the collapse of the State is not an option. Therefore, the normative hierarchy of the Constitution and its invalidating effect (Article 179) are suspended in relation to laws attempting to ensure the State’s existence by providing operative alternatives to the constitutional provisions that became muted.
The introduction and application of the law of necessity has had a transformative effect on Cypriot constitutional law both in institutional and in substantive terms. Institutionally, the organs of the State are enabled to function regardless of the nonparticipation of Turkish-Cypriot officials and despite the rigid constitutional provisions pertaining to the composition and operation of such organs. This has impacted on the advising issue, since the principal advisory function of the AG has become mono-communal rather than bi-communal due to the fact that the post of the deputy AG is now occupied also by a Greek-Cypriot.
Originally, the posts of AG and the Deputy AG were to be filled on the basis that they “shall not belong to the same Community” (Article 112 of the Constitution). The departure from this rule affects the structural balance between the two communities and the purposed taking into account of communal views on constitutional advice. The recipient of the advice has also been affected in the sense that the office of the Vice-President remains vacant, while the composition of the Council of Ministers does not include any Turkish- Cypriots. In substantive terms, the law of necessity has had a dramatic impact on what is perceived as constitutional, that is on the actual advice, given that the constitutional provisions are now construed through the lens of the law of necessity.Consequently, any analysis of the Cypriot constitutional setting must take into account the preceding distinguishing framework and the law of necessity. That impacts on the separation of powers, since the bicommunal principle that was originally intended to be the primary mechanism for checks and balances, has been neutralized. Therefore, the institutional balance has been affected. In relation though to the constitutional advisory roles, the primacy of the AG has remained largely unaffected and it might be said it has been strengthened because the system now relies in a mono-personal manner on the aforementioned constitutionally independent official. The Deputy AG acts under the instructions of the AG (Article 113 of the Constitution) and they both originate from the same community. The next section focuses on the characteristics of the Cypriot advisory role for constitutional matters.
6.3