By Dr. Christos Clerides
Lecture 1 - 30/9/2009
“Η θυγατήρ της Δημονάσσης , διαπράξασα μοιχείαν, εκάρη την κόμην και ενεγράφη μεταξύ των μοιχαλίδων, εκ δε των δύο αυτής υιών ο μεν, επειδή εφόνευσεν βουν αροτήρα, κατεδικάσθη εις θάνατον, ο δε αυτοκτονήσας εστερήθη της κηδεύσεως»
“The daughter of Demonassa , having committed adultery, her hair was shaved and was registered as a married prostitute and one of her two sons because he slaughtered a plough bull was sentenced to death and the other who committed suicide was not burried”
In ancient times in Cyprus it is believed that Demonassa a Cypriot, reputed legislator in mythology rather than history, enacted three Laws widely respected. The wife who commits adultery shall have her hair shaved and be registered as a married prostitute, the person who commits suicide should not be buried and he who is slaughters a plough bull should be put to death. We have certainly gone a long way ever since. Adultery is not a crime, nor suicide , and bull meat is considered a delicacy.
BYZANTINE ERA TO COLONIAL RULE
During the Byzantine era , Byzantine Laws were applicable and formed the precedent to the Assizes Codes of Law applied during the Franks reign (1192-1489) and the Venetian period (1489-1570) . The Venetians tried to introduced their own system of law and during the Ottoman period (1570-1878) , the Ottoman codes were applicable and widely used. The Civil Code of 10th March 1869 “Μejelle” was applicable based on decisions and opinions of the Imams with great similarities to the Indian «Χεττάγια». The Ottoman Commercial Law was also applicable with great similarities to the French Napoleonic Code. The Admiralty Code and Criminal Law also based on the French Codes were used. The Ottoman immovable Property Law, the Law on Succession , the Press Law, mines etc were all applicable to Cyprus until 1878 when Cyprus was ceded by Turkey to Great Britain be virtue of a Convention of Defensive Alliance between Great Britain and Turkey of the 4th of June 1878. That was when Turkey needed the assistance of Great Britain in respect to certain Territories Occupied by Russia and because of the fear that Russia would occupy more territory. Possession and administration of Cyprus was handed over to GB on certain terms including payment to Turkey of the surplus budget estimated to 22.936 «πουγγία» where «έκαστον πουγγίον = 500 γρόσια». The management was thought to be temporary ie. Cyprus would be returned to be Ottomans when occupied by Russia areas in Armenia would terminate.
The British Rule 1878-1960
The British maintained the Ottoman laws with from time to time additions and amendments introduced by The Cyprus Laws of the Cyprus Legislative Council or Orders in Council. In addition various International Treaties entered into by Great Britain were extended to Cyprus. Since 1927 a process of assimilation of the Cyprus Laws with the Laws of Great Britain was embarked upon Already by 1930 Cyprus Laws were considered outdated and in need of reform , something which is still applicable today.
The Constitution of the Republic of Cyprus was signed at Nicosia on the 16th August 1960 by representatives of the British , Greek and Turkish Governments and by the leaders of the 2 communities at the time and was put in force on the same day by Order in Council SI 1368/1960 made under the Cyprus Act 1960 of the British Parliament. At the same time the 3 Treaties of Establishment ,Guarantee and Alliance were signed by the representatives of Great Britain , Greece , Turkey and the Republic of Cyprus. On the 21 September 1960 Cyprus became a Member of the United Nations and on 24 May 1961 a member of the Council of Europe having acquired international recognition. On the 15 February 1961 the House of Representatives by majority decided in favour of Cyprus becoming a member of the Commonwealth.
THE CONSTITUTION OF CYPRUS
The 1960 constitution has not as it has been rightly pointed out by the former Attorney General , see Tornaritis in his Textbook “Cyprus and its Constitutional and other Legal problems” p. 43 emanated from the free will of its people.
It was not the outcome of a referendum but rather of the Zurich agreement between Great Britain , Greece and Turkey . It was the result of the anti colonial EOKA struggle of 1955-1960 .
The Constitution is one of the most complex and rigid Constitutions in the word. A number of its articles are considered as basic articles and cannot be amended except with the consent of all the parties involved including Great Britain, Greece and Turkey. Other provisions of the Constitution have been considered by the Supreme Court of Cyprus as subject to amendment despite the absence of the Turkish-Cypriots who would normally have been required to vote for the amendment in a positive manner by a 2/3 separate majority .
The Supreme Court has decided that the law of necessity justified amendments to the constitution of the non basic articles and to the extent that the amendment did not affect adversely the rights of the Turkish-Cypriot community.
As a result so far we have had five Amendments to the Constitution of Cyprus relating to the introduction of Civil Family Courts, Civil Marriages and Divorces, see law L 95/89, the Second Amendment Law 106(1)/96 enabling 18 years old citizens to vote . The Third Amendment , L115 (1)/96 enabling a law to be enacted that would provide for the filling of vacant seats in the House of Representatives , the Fourth Amendment 104 (1)/2002 modifying the provisions relating the Central Bank to ensure its independence under EU Law and finally the very important Fifth Amendment 127 (1) /2006 providing for the supremacy of EU law which hierarchically is placed above the Cyprus Constitution indirectly at least.
The Cyprus Constitution provides for direct elections of a President and a Vice President for a House of Representatives and Communal Chambers with jurisdiction over Family Law matters and Education .
The philosophy of the 1960 constitution was based on the existence of two communities with a right to vote separately for the President and the Vice President, for their members in the House of Representatives and for their Representatives in the Communal Chambers.The Constitutional provisions are permeated with this division between Cypriot nationals of Greek and Turkish origin.
A single Supreme Constitutional Court was set up with a non citizen of the Republic of Cyprus as its President and a High Court again consisting of a neutral President. The Supreme Constitutional Court has jurisdiction in Administrative and Constitutional law matters, whereas the jurisdiction of the High Court was confined to Civil or Criminal cases .
The independent offices of the Republic are the Attorney and his Deputy the Accountant General and his Deputy, Greek and Turkish Cypriots respectively .
A Public Service Commission was set up for the appointment, promotion and dismissal of civil servants .
THE LAW OF NECESSITY
Due to inter communal fighting of 21 December 1963 the Turkish ministers and the Turkish members of the House of Representatives refused to exercise their functions. In July 1963 the office of the President became vacant and in May 1964 the President of the High Court resigned. Turkish District Judges did not attend to their duties normally and as a result the Administration of Justice (Miscellaneous Provisions ) Law 1964 was enacted to provide for a way to exercise the judicial power by a Supreme Court which basically incorporated the Supreme Constitutional Court and the High Court in one Court.
The Law was challenged as unconstitutional but in the Landmark case of Attorney General of the Republic v. Mustafa Ibrahim (1964) CLR , p. 195 , it was decided that the law was justified under the law of necessity due to the abnormal situation as above described.
Although the Turkish judges resumed duties they ceased to do so since the 1 June 1966. Ultimately the Greek Communal Chambers competences were transferred to a Ministry of Education and gradually various laws were enacted to adapt to the extraordinary situation . This were approved judicially by the law of necessity.
THE COURT OF JUSTICE LAW 1960
On the 17 December 1960 Law 14/1960 (the Court of Justice Law ) was enacted and ever since has been amended 54 times, the latest amendment being Law 36( 1)/2009 .
The law consists of 73 sections and one Schedule.
It is based on previous Courts of Justice Laws in particular Cap 8 and previous editions of it which were introduced by the colonial authorities.The Law provides for the establishment under the relevant Constitutional provisions and for the functions of the Courts of lower jurisdiction.
The provisions relating to the Supreme Court of Cyprus are to be found in Articles 133-151 of the Constitution as amended by the above law relating to the Administration of Justice Law of 1964.
Articles 152-164 of the Constitution provide for the High Court now Supreme Court which exercises the jurisdiction of the former Supreme Constitutional Court and the High Court together . Provision is also made for the lower courts .
The Courts of Justice Law provides basically for the District Courts and the Assizes Court as well as other courts for which separate provision is made and for which provision is made in section 3 of the Courts of Justice, such as the Rent Control Courts, the Family Courts, the Employment Tribunals.
The law provides for the composition of District Courts the appointment of judges, their salaries and terms of office, for the registries and the appointment of judicial clerks and bailiffs as well as their rights and duties.
Provision is also made for the jurisdiction of the Courts and the applicable laws as well as the powers of the Courts and the procedure to be followed relating to witnesses and appearances before the Courts.
Finally provisions are made for the place that the Courts sit and various others provisions relating to the smooth functioning of the administration of justice.
The Applicable Law
Section 29 of the Courts of Justice Law, provides for the Law which shall be applied in Civil and Criminal matters by the Courts.
It is provided that each Court in the exercise of its Civil or Criminal jurisdiction shall apply the following laws:
a. The Constitution of the Republic and the Laws under it.\
b. The Laws already applicable on independence.
c. The Common Law and the principles of Equity unless otherwise provided by the law or the Constitution .
d. The laws relating to Evkaf.
e. The laws of the UK Parliament which were applicable in Cyprus immediately prior to independence unless otherwise provided by Law or the Constitution.
As it can be seen from the above, the applicable laws in Cyprus relating in civil and criminal matters are a mixture of the laws written in English prior to independence and applicable and which are known as Chapters (Caps) and laws enacted by the Republic ever since. These former were enacted during the colonial era. They have been constitutionally preserved by virtue Article 188 of the Constitution. These colonial laws cover all aspects of Criminal and Civil matters including procedure. They cover such matters as Company Law CAP 113, Contract Law CAP 149, Wills and Successions CAP195, Immovable Property Law CAP 244,the Law of Evidence, CAP 9, Civil Law Wrongs CAP 148 , the Advocates Law ,CAP 2 , Criminal Procedure CAP 155, Civil Procedure CAP 6, Criminal law CAP 144, and many others. In fact the bulk of the Cyprus legislation is based on this Colonial Legislation which has been only partially amended.
It is no exaggeration to say that still in Cyprus we apply basically colonial law hardly adapted to the modern day needs of society and commercial practices.
The need for fundamental reforms is prevalent but amendments in general are slow. The substantive laws themselves enacted during the colonial days are based on out of date laws applicable in England or Codes adopted from other colonies.
For example in the field of contract our Contract Law Cap 149 is based on the Indian Contract Law that is the Indian Contract Act of 1872.
Our Company’s Law Cap 113 is based on the English Companies Act of 1948 with amendments enacted in the field of harmonization of Cyprus Company Law with that of the European Union recently but the substance of the law remains that which is applicable under the English Companies Act of 1948. Similarly until recently our law of evidence was based on principles of law on evidence applicable in England at the beginning of the 20th century.
Cap 9 ,Section 3 , provides in fact that every Court in the exercise of its civil and criminal jurisdiction applies the law of evidence which applied in England on the 5 November 1914 .
After many years of public debate and in the House of Representatives , a Special Part was added to the law by virtue of law 32(1)/2004 by virtue of which the strict principles of the hearsay rules were conditionally abolished.
With Cyprus’ accession to the European union a lot of legislative amendments were introduced but the core subjects of the law as above described remain basically unamended as applicable primarily in the first half of the 20 century in England.
In addition to the applicable laws at the time of independence the principles of common law and equity as applied by the jurisprudence of the courts in England are applicable even today.
This continues to provide the Cyprus Courts with the possibility of approaching resolution of disputes with a continuously progressive jurisprudence as applied in the Courts in England especially in the filed of Equity. Landmark cases of the House of Lords are applied in Cyprus and the British jurisprudence is widely respected and accepted by the Cyprus Courts.
Finally a number of Acts of the United Kingdom which themselves made provision that were applicable to the Colonies and were so applicable to Cyprus immediately prior to independence date of 16 August 1960 still continue to apply. In the material I have given you I attach a list of these laws. In practice we almost never encounter them in our profession.
Finally I should mention that in Constitutional and Administrative matters the Supreme Court applies the jurisprudence and theory applicable primarily in Greece and in constitutional matters it frequently cites cases of the Supreme Court of the United States as well as US Federal Courts.
If you study the judgment of Ibrahim supra you will note the attitude of the Court. Also in Administrative law matters the Court relies heavily on the law and practice of the Conseil D’ Etat of Greece.
In the case of The Holy See of Kitium and the Municipal Council of Limassol 1 RSCC p.15 the Supreme Constitutional Court decided that it functions on the precedent of similar courts in many European Countries and applies continental law principles.
See also The Republic v. Andonios Mozoras, (1966) 3 CLR, p. 356.
As it can been seen from the above in Cyprus we have a mosaic of laws which does not make it easy either for the law students or the legal practitioners’ to be an expert in all.
To be able to practise law in Cyprus you need to be well conversant with the law applicable in England up to 1950 , you need to know the legislation which was applicable by virtue of British Acts of Parliament in England up to August 1960 , you need to know all the Cyprus legislation that was enacted following independence , you need to know the jurisprudence , i.e case law of the Cyprus Courts as well as English Courts and you need to know Greek administrative law as well as the principles and jurisprudence of major United States Constitutional Law cases. Belatedly you need to learn and apply Human Rights Law and European Law !
In certain fields like Family Law the applicable law is similar to the applicable Greek Family Law .In fact the reform on the basis of the 1st Constitutional Amendment introducing the Civil Divorce and the Civil Marriage and the Family Courts followed the reform of Greek Family Laws, in Greece. The amendment of the Constitution was the end of a long process of an ad hoc Reform Committee for the codification and amendment of Cyprus Family Law which was established by the then Justice Minister , Mr. Phoebus Clerides in the 80s .
The Hierarchy of the laws
Under article 179 par. 1 of the Constitution “The Constitution shall be the Supreme Law of the Republic” . Par. 2 provides that no law or decision of the House of Representatives or of any of the Communal Chambers and no act or decision of any organ authority or person in the Republic exercising executive power or any administrative functions shall in any way be repugnant to or inconsistent with any of the provisions of this Constitution.
Further it should be noted that under Article 169 par. 3 of the Constitution International Treaties, Conventions and Agreements , have a superior force to any municipal law on the basis of reciprocity .
The first inroad into this principle of hierarchy of the laws, was made by the jurisprudence of the European Court of Human Rights in Strasbourg. Member states of the Convention for the Protection of Human Rights cannot plead in defence Constitutional provisions which may violate the Convention itself. The Republic of Cyprus tried to do that in the case of Aziz v. Cyprus (2004) Mr. Aziz a citizen of the Republic of Turkish origin asked to be registered on the electoral pole to vote in the Parliamentary elections. He was denied the right because under the Constitution Turkish Cypriots vote separately for the Turkish Cypriot Members of the House of Representatives and since as we have seen above since 1963 those Members refused to participate in the organs of the Republic he would not be allowed to vote in the Parliamentary elections of the year 2001. The Court held that there was a clear violation of the Convention in particular article 3 of protocol No. 1 , which guarantees Mr. Aziz the right to vote and further noted that there has been a discrimination contrary to article 14 in conjunction with article 3 of protocol No. 1. i.e the right to vote. In other words indirectly it was decided that the Constitutional Provisions would not excuse the Republic of Cyprus from a violation of the Convention and indirectly are deemed to be hierarchically superior to Constitutional provisions. Needless to say that the Supreme Court of Cyprus, may think otherwise.
The Second substantial inroad to the principle that the Constitution is the supreme law of the land was made by the Fifth Amendment which we have seen above and which provides , Law 127 (1)/2006 , that as from 28/07/2006 under Article 1 A introduced ,no provision the Constitution shall be deemed to make void EU Laws .
In other words indirectly EU laws even if contrary to Constitutional provisions shall be deemed valid.
In addition article 179 of the constitution which we have seen above was amended to provide that no Cyprus Law can be enacted which is contrary to any obligations of the Republic which arises as a result of membership in the European Union.
An interesting question which may have to be decided by the Cyprus Courts and inevitably the Supreme Court is which system of Laws, in case of conflict between EU Law and the European Convention of Human Rights would prevail. Judges of the Supreme Court are inclined due to long experience in judicial posts before elevated to the highest judicial office to give priority to the Constitutional provisions but as time changes they may have to adapt inevitably to the new climate.