Cyprus 1964: Majority Rule means War
Constitution of Cyprus requires good will/London conference discusses reforms.
By Dr. Christian Heinze
(DZ) Under the chairmanship of the British
Minister Butler, the Cyprus conference is taking place in London since
Wednesday with representatives of the Greek and Turkish communities of
Cyprus and with the foreign ministers of Greece an Turkey. In this
we are publishing the following article by Dr. jur. Christian Heinze,
in 1962/63, has acted as assistant to the president of the
Court of Cyprus, the Heidelberg jurist, Ernst Forsthoff.
When Cyprus became independent from Great Britain, the cooporation between the Greek and the Turkish communities on the island was to be secured by the constitution of August 16th, 1960, and by a system of guarantees under international law. Cyprus, which was exposed for 5.000 years and to an extraordinary degree to the impact of all important cultures from the West and from the East, is presently becoming a testing ground for the capability of constitutional and international law to provide peace, cooporation, freedom, and justice.
The Greek Cypriots, who contribute four fifth to the population, compete with the Turkish Cypriots for their respective rights on the island. The Greek Cypriots claim sovereignty by referring to their majority in number and to the age-old influence of Greek culture in Cyprus; the Turkish Cypriots point to the fact that Cyprus has been part of the Turkish empire between 1573 and 1914.
These claims are, of course, without legal significance for the present constitutional situation. Instead, the validity of the constitution of 1960 derives from its having been accepted by representatives of the Cypriots, and from the constitutional power of Great Britain as the mother-commonwealth to which the island had belonged as a crown-colony and which has conceded statehood to Cyprus under the terms of this constitution. Its legitimacy is supported by Greece and Turkey guaranteeing the constitution under international law. Some Greek Cypriot circles contend that the constitution is not valid because it has not been voted upon by the people and because it did not transfer sovereignty to the Greek majority, and also because the constitution was so badly drafted that is was "unworkable" and that, in addition, it gave unjust preference to the Turkish Cypriots. The validity of the constitution, however, does not depend on a formal vote by the people. There ist no doubt that Archbishop Makarios as the representative of the Greek Cypriots and Dr. Kücük as the representative of the Turkish community were empowered to sign the constitution. Their authorization derived from general elections that had taken place in December, 1959.
The claim made by the Greek Cypriots for being entitled by their democratic majority to rule the island misinterprets the meaning of the constitution and of democracy and trivialises the existing contrasts between Greek and Turkish Cypriots. The importance of these contrasts derives from the bloodshed that had taken place around Christmas 1963. It was exactly the objective of the constitution to pacify these contrasts and to provide freedom and justice for all Cypriots, and not rule of one community over the other. Pure majority government basically requires fundamental homogeneity of the body poilitic to be governed. But the specific feature of the political structure of Cyprus consists in the fact that the homogeneity in question does not exist here. The contrast between the communities can therefore not be overcome otherwise than by legal guarantees. The critisism of the constitution, although such criticism is widely supported in Cyprus, is certainly unwarranteed in its exaggeration. Thanks to the involvement of excellent Greek and Turkish constituional lawyers and considering other countries' constitutional examples, the Cyprus constitution of 1960 is a fairly and clearly formulated law and not at all unworkably complicated. The rumor about the impossibility of its implementation is legally untenable and even less convincing because the originators of this rumor never left any doubt about the fact that they had no intention at all of implementing the constitution. The first president of the constitutional court, the Heidelberg professor for public law, Ernst Forsthoff, has always denied the allegation that an implementation of the constitution was impossible, and he has always stressed that it is a matter of good will to make it work.
The allegation of unworkability is mainly directed against two legal requirements contained in the Constitution. According to its article 78.2, certain laws (for example tax laws) can only be passed with a majority vote of all Greek and a majority vote of all Turkish representatives in parliament. If both communities desire a balanced legislation, this procedure obliges them to find a compromise. If they do not succeed in this, it must be considered to be the failure of the representatives and not of the constitution. According to article 173, a "seperate municipal administration" must be established for both communities in five cities of the island. Some hold it impossible to divide physically cities that have developped in a natural process. Others say that only devided cities meet the requirements of the constitution. Such intransigence reveals either a lack of legal resourcefulness or a lack of cooperation and willingness to compromise, because the wording of the constitution is not compelling in the sense of requiring a territorial division of all administrative responsibilities into two completely seperated municipalities within the five cities. The conditions of the constitution would be sufficiently met by a double-tracked procedure for passing municipal statutes, similar to that prescribed for tax laws, or by a twofold organisation and a separation of certain administrative responsibilities on a personal basis. There is also no doubt that the establishment of some fully unified branches of the administration of the cities would be consistant with the constitutions.
Important reasons can surely be brought forth rendering questionable the justice and suitability of some legal requirements of the Cypriot constitution. But the main objection raised against the requirement of separate majorities for certain laws is definitely not justified. It is hard to conceive how the Turkish Cypriots can be legally protected against being outvoted without veto-rights against the passing of laws. Remaining doubts concerning the merits of some constitutional norms, for example concerning the allocation to the Turkish Cypriots of a higher share in public posts than would correspond to their population percentage, cannot be deemed to diminish the obligations stipulated in the constitution, because both communities have agreed to them. Therefore, no legal arguments can be recognized that could justify the disrespect for the constitution which has become the declared policy of the Greek part of the Cypriot government. This policy became evident when, in April 1963, the constitutional court of the Republic of Cyprus, chaired by professor Forsthoff, upheld several applications raised by the Turkish Cypriots against steps that had been taken in order to establish centralized and therefore unconstitutional municipal administrations. To consider the constitution as being unworkable because the required cooperation was not achieved would seem equivalent to claiming that criminal law was not valid because it was being violated anyway.
But how can the future of Cyprus be coped with? The constitution could of course be changed with the consent of all concerned. The share of the Turkish Cypriots in public posts could be reduced to an extent corresponding to their population share. Also, veto rights of the two communities could be made subject to restrictive preconditions. A change of the constitution could also be considered insofar as it concerns the municipal administration which is a main subject matter of contest between the Greek an the Turkish Cypriots. The constitution containing no more than a programme for the forming of separate municipalities. In this way the legislators of the constitution have not solved but have only delayed the solution of a delicate task and burdened it upon parliament. Parliament, however, was unable to reach agreement. If the constitution is to be improved in this point it would seem reasonable to establish by definite articles of the constitution itself the separate municipal administrations in question. It would also appear reasonable to incorporate into the constitution provisions that help to prevent a repetition of the violence of Christmas 1963. A safe basis for a peaceful future can however hardly be established by removing fundamental Turkish rights. For how could mistrust between Greek and Turkish Cypriots be expected to disappear if history taught that it was possible to compel a change of the constitution by declaring it unworkable and, referring to this alleged unworkability, by disregarding it, thus allowing the development of a civil war over the resulting dispute ?
Penal regulations are necessary.
The London negotiations about the future of Cyprus could consider removing the most obvious reasons for the conflict without touching the basic structure of the constitution. This would appear possible if the two communities could agree in London on tax legislation, on legislation concerning the municipal administration and on the distribution of public posts. Such an agreement would justify hope for improvement. But it should also be taken into consideration that a constitution must be protected against anti-constitutional activities by penal legislation. This applies especially to the constitution of Cyprus which is exposed to such activities to an extraordinary high degree. Such legislation is lacking and should therefore be introduced in Cyprus.
The Cypriots should also examine which of their members of parliament and government and of their administration may have to be blamed for having failed in making common self-government work in the past, be it because of a lack of good will or of the ability for cooperation and constructive engagement. It should, for example, not be overlooked that former active members of partisan organizations may be destined rather to destroy a government and administration than to produce the capability of establishing such a sensitive state structure as is required for Cyprus.