Revisiting Cyprus’ doctrine of necessity

The history behind the legal road to institutionalising ‘exceptional circumstances’Like an old dog barks now and again to remind himself he is a dog, an old Cypriot scribbler feels the need to write about the Cyprus problem now and again to remind himself he is a Cypriot, even when there is not much to write about. For the generation that came of age in the 1960s and 1970s, events and personalities of the early turbulent years after Cyprus’ independence trigger the urge to write about aspects of the Cyprus problem topical at the time with the benefit of hindsight. One such is aspect is, did the constitutional vacuum in 1963-64 justify legislation applying the doctrine of necessity as a foundational principle of Cyprus’ 1960constitution? In a nutshell, the doctrine of necessity holds that in exceptional circumstances changes could be implied in an otherwise unchangeable constitution to enable the state to function in the public interest if there is no alternative and the changes are temporary and proportionate. Necessity is famously the mother of invention and as the Greek Cypriots were the majority community, it was inevitable they would retain de facto control of the government of the Republic of Cyprus (RoC) in the absence of Turkish participation in the government. The importance of the doctrine of necessity is that it made it de jure too. The political effect of holding the doctrine of necessity as a foundational principle implicit in Cyprus’ constitution has been that itenabled the government of the bicommunal Republic of Cyprus (RoC) under the 1960 treaties to be composed entirely of members of the Greek community of Cyprus since 1964. So who was the presiding judge and what was the composition of the senior court that made such a momentous decision? Research into the life and times of judge George Vassiliades – whose two sons perished at sea around Cape Greco in 1959, about whom I wrote last Sunday – revealed that he was the presiding judge of the newly created Supreme Court of Cyprus in the landmark decision in Attorney-General v Ibrahim in 1964 that established the doctrine of necessity. Judge Vassiliades had been a district judge until Cyprus became independent in 1960 when he was elevated to the High Court of Cyprus. The High Court was one of two superior courts and had four judges, two Greek, one Turk and a foreign neutral judge who was the president and had two votes. The other Greek judge was Constantine Josephides; the Turkish judge was Mehmet Zekia, and the neutral judge was the Canadian John Wilson. The jurisdiction of the High Court was original and appellate in civil and criminal matters. It lay at the apex of a court service that included subsidiary district courts for the proper and prompt administration of justice and the efficient protection of human rights. There was also a Supreme Constitutional Court comprising three judges with jurisdiction to adjudicate on thorny questions of a political nature such as inter-communal discrimination in lawmaking as well as normal constitutional questions. The Greek judge of the constitutional court was Michael Triantafyllides and the Turkish judge was Necati Munir. Each of them had been a member of the constitutional commission that drafted the constitution from the political agreement signed by Greece and Turkey at Zurich in February 1959. Like the High Court, the Supreme Constitutional Court had a neutral foreign judge. He was the German academic, professor Ernst Forsthoff. He resigned in July 1963 and his replacement by an Australian judge had been agreed, who was due to begin sitting in January 1964. Unfortunately, his swearing-in was overtaken by events because constitutional order had broken down with the outbreak of inter-communal violence over Christmas 1963 and he did not take up his post. Also, in May 1964 the neutral president of the High Court, John Wilson, resigned leaving a vacuum at the top of the whole judicial system. Owing to the inter-communal violence, president Makarios and vice president Kuchuk were unable to appoint a replacement.The violence also caused serious problems for Turkish judges though they resumed sitting in June 1964 and continued in post until 1966 when they resigned en masse. In about August 1964 an administration of justice law was passed to take account of the impact of the breakdown of constitutional order on the courts system. In its preamble, the new law was justified as necessary owing to the recent events that made it impossible for the Supreme Constitutional Court and the High Court to function. The need for legislation was justified because justice had to continue to be administered “unhampered by the recent events.” The system of justice was unified into a new Supreme Court of five judges: three Greek and two Turkish, with the highly respected Turkish judge, Mehmet Zekia, as its president. Judge Zekia stepped down as president of the court when all the Turkish judges in the Cypriot judiciary resigned in 1966, but remained the Cypriot judge in the European Court of Human Rights until 1984. The doctrine of necessity found fertile ground to grow as an antecedent foundational principle of constitutional law in Cyprus in front of a bench of three Greek judges: Judges Vassiliades, Triantafillides and Josephides. But that is not the completeand fair picture. What happened was that the full five judge new Supreme Court, including the Turkish judges Zekia and Necati Munir had unanimously nominated the three Greek judges who heard the case of Attorney General v Ibrahim knowing they would consider the doctrine of necessity. It looks as though in 1964 the two top Turkish judges were prepared to concede that the doctrine of necessity was capable of temporarily suspending some of the bicommunal aspects of Cyprus’ constitution but only until 1966. The legal question in 2026 is whether other things being equal the doctrine of necessity is not always temporary but capable of applying for the duration of a constitutional vacuum.