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
Foreign
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
connection
we are publishing the following article by Dr. jur. Christian Heinze,
who,
in 1962/63, has acted as assistant to the president of the
Constitutional
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.
Greek Arguments.
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.
Legal guarantees.
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.