Reconstructing Mixity: Sources of Law and Legal Method in Cyprus
Reconstructing Mixity: Sources of Law and Legal Method in Cyprus
Aptly described as a “colorful plurilegal mosaic” (Symeonides 2003: 442), Cyprus law constitutes a mixed legal system in the traditional sense of the word. Like the better-known members of Vernon Palmer’s (2001b: 7–9) “third legal family,” Cyprus law is built on the twin foundations of common law and continental law, each in control of different legal subjects.1 It is, however, pretty much a unique mixed legal system in which private law (in most subjects) and criminal law follow the English common law, and public law has a continental orientation. Procedural law is purely common law—a major factor in the mutation of the more continental elements of the legal system.
Like all major mixed legal systems, the bijurality of Cyprus law was founded on a transfer of sovereignty from British colonial rule (1878–1960) to independence.2 The bijurality of the legal system has been strengthened—and challenged—by the bilingualism of the system and the power politics of the legal elites.3 The constitution did not acknowledge English as an official language, and all new legislation to this day has been in Greek, but English remained in use in the courts until 1990, and the translation of colonial legislation into Greek was completed only in the mid-1990s. The legal profession has, moreover, been divided between continental- and English-educated lawyers, a split with a generational or even a class dimension and repercussions as to subject matter. All these factors contribute to a complex picture of a unique legal system, which has seldom been studied properly from either the inside or the outside.
This chapter examines an important aspect of the legal system: its sources of law. The chapter forms part of a broader project on Cyprus as a mixed legal system from a comparative law point of view, which includes general studies of the legal profession and legal education in Cyprus and of the structure of the legal subject matter. This project makes use of modern theories of comparative law—notably with regard to mixed jurisdictions, legal influences, and hybridity—in accounting for the complexities of Cyprus law. This chapter, however, represents an early stage in the project and is less ambitious in its goals.
It is structured in five parts. The next part serves as a more detailed introduction to the legal system as a whole. The two following parts discuss written law, encompassing statutory law and sources superior to legislation, and the penultimate part discusses case law and interpretive methods. The final part consists of four case studies, regarding contract, family, and procedural law, that illustrate certain dimensions of the system.
Prelude: Cyprus Law in Context
A Historical Introduction
I begin with the shortest of historical introductions.4 Cyprus is the largest island in the eastern Mediterranean. Since the second millennium B.C., a significant majority of its population has identified itself as ethnic Greek. For the past 800 years, however, it has been ruled successively by the Lusignan kings of Jerusalem, the Republic of Venice, the Ottoman Empire, and the British Empire. When the British took over the island in 1878, the legal environment mixed Byzantine Roman law, as administered by the institutions of the Greek Orthodox Church, and Islamic law with Western-styled secular Ottoman legislation. Initially, British procedural law was added to this mix. When Cyprus formally became a British colony in 1925, English substantive law began its conquest of the land. By the time of independence in 1960, Cyprus would be regarded as a small but definite member of the common law tradition.
On its face, independence should have led Cyprus away from the common law tradition: after all, it empowered a people—or peoples—attached to motherlands and languages falling firmly within the continental legal tradition. In effect, however, independence was imposed on the vast majority of Cypriots. Greek Cypriots, who had fought for union with Greece, were instead called to share power—in a manner viewed by most as disproportionate to ethnic and social demographics—with the ethnic Turkish minority (whose leadership flirted with the idea of the island’s partition between Greece and Turkey). In any event, the institutional arrangements put in place at independence would disallow significant law reform. The constitution established a presidential system of two separate communities, Greek and Turkish.5 For each Greek Cypriot in a constitutionally prescribed government office, a Turkish Cypriot deputy with veto power was appointed.6 The House of Representatives effectively consisted of two caucuses, with separate majorities needed for matters such as taxation, electoral reform, and city government.7 Relative parity was provided in the two supreme courts of the land and quotas in the civil service. Separate municipal structures—both mayors and city councils—were elected in the five major cities.8
The political conditions soon deteriorated into a state of emergency in 1963–1964, culminating in a bombardment by Turkey, the departure of the Turkish Cypriot leaders from their government posts, and the segregation of Turkish Cypriots into autonomous enclaves. The republic continued to operate on the fiction that Turkish Cypriots would return to their positions, although amendments were made in the function of certain institutions under the so-called necessity doctrine. The fiction persisted even after the two-stage Turkish invasion in 1974 effectively divided the island. Today, the Republic of Cyprus controls a little less than two-thirds of its actual territory; its institutions remain bicommunal, but the vast majority of Turkish Cypriot residents of the island live in the northern territory controlled by Turkey. Turkish Cypriots are citizens of the republic and can travel freely in its territory and the rest of the European Union (EU), but they do not participate in the political institutions of the republic pending solution to the “Cyprus problem.”
Law in Present-Day Cyprus
Cyprus is that unique combination of a European and a postcolonial country. Much of the legislation and the legal institutions still in place have a distinctively colonial or postcolonial flavor; however, Cyprus has always identified with Europe and, especially since accession to the EU in 2004, the country and its professional elites have been active participants in European law and institutions. Moreover, the complicated political situation has led to a combination of a traditionalist mentality with the sense of perpetual temporariness.
To this day, the common law has maintained its hold on Cyprus law. The court structure certainly looks like a common law judiciary, with a unitary court system consisting of one trial and one appellate instance. Procedural law has been a tool for the continued dominance of the common law. Contrary to classic mixed jurisdictions, the heart of private law—namely, the law of obligations—is a stronghold of English common law in Cyprus. Criminal law is another privileged domain of the common law.
However, pockets of resistance to the common law have been expanded or created. Let us consider, for example, family law. By the end of British colonial rule, only divorce was left to ecclesiastical jurisdiction; the family law reform in the early 1990s, however, not only transplanted secularized Greek family law across the legal field but also extended its effective application to all Cyprus domiciliaries. But the principal example of resistance against the common law concerns public law. Greek administrative law (itself developed by case law in the spirit of the French administrative legal tradition) became the principal source of the new administrative law of Cyprus. Today, the general principles of Cyprus administrative law are codified in statute, and the case law of the Greek Council of State is held in high esteem.
Mutation might in fact be the key word in describing the present-day Cyprus legal system. On the one hand, legal fields inspired by the continental legal tradition have been mutated through the use of common law procedure and a common law mentality among the judiciary. On the other hand, the legal profession has also mutated away from common law ideal types: the bar is a massive, unitary body (consisting of advocates: the distinction between barristers and solicitors was never adopted); the politics and daily function of the Cyprus bar are, in fact, more similar to those of Athens than those of London. As to the judiciary, the system of promotions and transfers—with the Supreme Court justices acting as the Supreme Judicial Council—has established a hierarchical, even bureaucratic system. The Supreme Court itself is not just a common law court of last resort; absent an intermediate jurisdiction, the Supreme Court has to sit on all civil and criminal appeals. Moreover, it acts as a two-instance administrative jurisdiction and a constitutional court.
Sources Superior to Statutory Law
Cyprus law follows a clear hierarchy of sources, with a rigid written constitution at the top and a prominent place granted to international law and especially EU law. The existential challenges that the republic has faced from its very beginning have made the constitution the paramount factor in Cyprus politics as well as law.9 International law and European law are also frequently invoked in the legal and political discourse, as might be expected of a republic that stakes its continued existence and any hopes of restoring its territorial integrity on international legality and European integration.
The Republic of Cyprus was established by an international treaty between the United Kingdom, Greece, and Turkey. The Constitution of the Republic came into legal existence as an annex to the Zurich-London treaty agreements. It is an extremely rigid instrument. Many provisions have been characterized as “fundamental” and may never be amended: 15 articles have been declared fundamental in their entirety, along with provisions from 33 more,10 to the point that some question whether the principle of popular sovereignty is actually enshrined in the constitution. For other provisions, a two-thirds vote by the representatives of each community, Greek and Turkish, is required for any amendment.11
In fact, the 1963–1964 breakdown of the bicommunal system of governance established by the constitution led to corrective legislation under the so-called doctrine of necessity, which was aimed at allowing state institutions to continue to function.12 The role of the Supreme Court of Cyprus (created from the merger of the High Court and Supreme Constitutional Court) as the final arbiter of constitutional questions became especially significant (Papasavvas 1998).
The constitution is the supreme law of the land.13 It contains a comparatively modern bill of rights, which is modeled after and has been largely interpreted in light of the European Convention of Human Rights. The importance traditionally granted to the office of the attorney general (which has so far acted as legal counsel to both the executive and the legislative branches of government) has translated into an effective (usually, but not always) mechanism of a priori control of the constitutionality of executive decrees and bills discussed by the legislature. Constitutional review a posteriori is an important—and more visible—mechanism of the legal system. Any litigant may raise the issue of constitutionality before any court or tribunal of the republic, which must refer the issue to the Supreme Court.14 The president of the Republic may, moreover, refer to the court the question of constitutionality of any legislation passed by the House of Representatives.15 Last but not least, courts are explicitly tasked with interpreting legislation—especially colonial legislation maintained in force after independence—in conformity with the constitution.16 Given how much colonial legislation (often dating from the nineteenth century or representing more repressive attitudes) remained in place after independence, this constitutional control became an important tool for step-by-step law reform.17 More recently, the Supreme Court acknowledged the right of individuals to make use of constitutional provisions in civil litigation.18
European Union Law
Cyprus formally acceded to the European Union on May 1, 2004. EU law has been challenging and transforming institutions in every field of law.19 The question of the hierarchical relationship between the national constitution and EU law was solved early on by an amendment to the constitution, which acknowledged the supremacy of EU law in its entirety over the constitution.20 The constitution ought, moreover, to be interpreted in conformity to EU law.
International law is also an important source of Cyprus law—as well as political discourse.21 In terms of legal sources, we must distinguish between treaty and customary law. As to the former, the constitution explicitly provides that treaty law supersedes any legislative provision to the contrary.22 Statutory provisions should be given, if possible, an interpretation conforming to international treaties.23 As to customary international law, however, we can infer its status only from the occasional obiter dicta of Supreme Court justices and comparative legal reasoning (Constantinides 2011). The approach followed by common law jurisdictions is to treat customary law as incorporated into the common law without any legislative or judicial interference. The approach followed by many continental countries, including Greece, is to apply the constitutional provision on treaty law by analogy. The Supreme Court might well go either way when the time comes to decide.
From a constitutional point of view, the statutory law of Cyprus consists of (a) legislation enacted during the colonial era and maintained under article 188(1) of the constitution24 and (b) legislation enacted subsequent to independence by the House of Representatives in accordance with articles 61 et seq. of the constitution.25 The former group of laws was originally written in English and translated only in the past quarter-century. It is organized by subject as “chapters” in the six-volume Statute Laws of Cyprus and is commonly referred to by chapter (cap.) number. The latter, written in Greek, are published in the Official Journal of the Republic and are referred to by their short title and year of publication or by the statute’s number and year.26
The few elements of religious law that survive in present-day Cyprus law—notably, the rules on the inalienable religious endowments known as Vakf—constitute a third source. These institutions constitute an expression of the constitutional recognition of the political and cultural autonomy of the communities and religious groups of Cyprus; as such, they can be reformed or eliminated by the initiative of the respective community. From a legal positivist perspective, they continue to exist by virtue of their incorporation into statutory law.27
A more fruitful distinction would be to divide existing legislation in accordance with the principal stages of Cyprus legal history. The colonial period could thus be subdivided into three stages: the first from 1878 until the official establishment of a colony of the Crown in 1925; the second from 1925 to World War II; and the third covering the postwar colonial period, during which the long-term status of the island was put in question. The postindependence period could, in its turn, be subdivided into the first decades of independence and the period of preparation for and actual accession to the European Union.
Identifying these five stromata of legislation allows us to better understand the evolutionary process that led to the present-day mixed or hybrid legal system and perhaps even to predict its development (Hatzimihail 2013: 72). A more pertinent reason for the purposes of this chapter, however, is that the origins (and age) of legislative texts play an important role in determining the methods used in their interpretation. Thus, legislation seen as a statement or restatement of English common law principles is handled differently by courts and the legal profession than legislation that is indigenous in origin or is derived from the continental legal tradition.
Procedural Law Reform: The Early Colonial Period
The first half-century of British colonial rule did not see much legislative reform of substantive law. The administration of the justice system was redrawn from early on, with colonial courts replacing Ottoman tribunals and chipping away at ecclesiastical jurisdiction over succession and marital property. However, Ottoman law (much of it in Westernized form, following the Tanzimat law reforms of the mid-nineteenth century) survived as the residual legal system until the official introduction of the common law by the 1935 Courts of Justice Law. The strong control of the courts of justice by British colonial lawyers of course mitigated this regime from the very beginning.28
Many of the procedural law reforms of this period were significant, but most instruments were replaced by the interwar efforts to create a proper common law regime. However, much of the legislation on enforcement matters has survived, with little change, since 1885: the so-called Civil Procedure Law (cap. 6), concerning precisely the enforcement of local judgments, is the principal example.29 Specific performance of land contracts provided the other until 2011.30
Codifying the Common Law: The Interwar Period
Substantive law reform began in earnest only once Cyprus became a colony of the Crown in 1925. In 1935, “the common law and the doctrines of equity” were finally made the residual system of norms—and yet they were to apply as in force on November 8, 1914 (the day Cyprus was annexed to the Crown following the declaration of war between the British and the Ottomans). An interesting specimen of the conservative attitudes of British colonial lawmaking from this period concerns the Evidence Law (cap. 9): the colony’s evidence rules were reformed into a consolidated statute in 1946, but Cyprus’s courts were nonetheless to apply “in any civil or criminal proceeding … so far as circumstances permit, the law the statutes in question and rules of evidence as in force in England on the 5th day of November, 1914.”31 The fact that this provision is still in place (even though the Evidence Law was amended a few years ago) also indicates the traditionalist mentality of the country’s legal elites to this day.
The interwar era’s lasting contribution has been the transplantation, mostly from other colonies, of important legislation on the basic fields of substantive law. Commercial law statutes dating from that period and still in force today are the Bills of Exchange Law (cap. 262),32 the Carriage of Goods by Sea Law (cap. 263),33 the Partnerships Law (cap. 116),34 and the Bankruptcy Law (cap. 5).35 But the most notable interwar statutes, in terms of both practical application and contribution to comparative law and legal history, are the three “codes” of Cyprus: the Criminal Code (cap. 154),36 the Contract Law (cap. 149),37 and the Civil Wrongs Law (cap. 148).38 Such legislation constituted an effective codification of common law principles in their respective fields, and the statutes in question are still in force today, often with little modification.
The lineage of these codes is worth a separate study. The Criminal Code and the Contract Law are generally accepted as effective transplantations of the respective nineteenth-century Indian statutes, whereas the provenance of the Civil Wrongs Law is more of a mystery. However, the full lineage of colonial statutes is more complicated. It has, for example, been documented that the Cyprus Criminal Code traces its immediate ancestry to the Nigerian code, which in turn is a descendant of the Queensland Code.39 As to the Civil Wrongs Law, the 1932 Cyprus statute appears to follow the 1927 draft of a Civil Wrongs Ordinance for Palestine, which in turn was based on the Civil Wrongs Bill prepared for India by Frederick Pollock.40
Be that as it may, what does transplantation mean in this case? Let us use the example of the Contract Law, which appears to be almost a copy of the Indian Contract Act of 1872.41 The primary differences between the two texts are technical. Certain explanations of the Indian legislator have been moved into the main text, and the illustrations have been removed; the chapter on the sale of goods came last in the original Cyprus statute and was subsequently abolished. Moreover, specific performance is provided for—in a single provision—in the Cyprus statute.42 The principal substantive difference is that the Cyprus statute provides explicitly that it be interpreted in accordance with English law43—even though on at least one occasion (namely, the rule on past consideration) Cyprus courts, unlike Indian courts, have read the same text as deviating from the common law.44
The sole substantive deviation of the Cyprus statute from the Indian prototype concerns the capacity of minors. Until 1970, English common law considered minors (“infants”) all persons not having attained 21 years of age; capacity of minors was—and still is—governed by a series of intricate rules (see, for example, Beatson, Burrows, and Cartwright 2010: 232–46).45 The Indian Contract Act espoused a clear-cut rule: capacity to contract depended on the person reaching the age of majority according to his or her personal law (“the law to which he is subject”).46 The Cyprus Contract Law followed the Indian rule as to the noncapacity of minors but avoided a similar reference to personal laws, simply fixing the age of majority at 18.47 In 1955, following a case in which incapacity was used as a defense by a minor against an action for breach of a promise to marry,48 article 11 was amended to include a reference to the English rules on capacity.49
The merits of the new rule have been debatable: it may be superior in fairness of result in individual cases and weaker in predictability. Even the claim of fairness would have been debatable were the provision not to deviate from the general rule in Cyprus that English common law is followed but not British legislation enacted subsequent to 1960, but at least the provision as it stands has allowed Cyprus courts to take into account the British statutory reform of the common law regime under the Minors Contract Act 1987. The Cyprus regime on minors’ contracts certainly perplexes law students, but then the whole issue of minors’ contracts has lost most of its significance in the real world. However, the story is indicative of the strong orientation of late colonial (and even postcolonial) Cyprus toward the English common law and its rules. It might also serve as a cautionary tale with regard to the pitfalls in haphazard legislative intervention in core subject codes.
In the Shadow of English Law: The Postwar Period
In the years following World War II and leading up to independence, the colonial government sought to consolidate the British position in Cyprus and to promote law reform in subjects that had previously been left to the status quo ante. Legislation on the administration of justice was thoroughly reformed; the new Courts of Justice Law made applicable in Cyprus the common law (and equity) as currently in force; last but not least, much legislation was imported from England and Wales directly or via other colonies. Leaving aside labor and administrative reform, one finds that the main area of such legislative activity was business and commercial law. The principal examples of statutes surviving from this period are the Companies Law (cap. 113)50 and the Trustee Law (cap. 193).51 To these we must add the Trade Marks Law (cap. 268) of 1951, which replaced an earlier statute dating from 1910.52 A new Sale of Goods Law (cap. 267) was enacted in 1953,53 modeled after the English Sale of Goods Act 1893 and repealing the Contract Law chapter on the sale of goods (modeled after the Indian Contract Act). That statute has been itself recently repealed, just like most colonial era legislation on intellectual property.54
The increased participation of Greek and Turkish Cypriot lawyers in the colonial justice system also allowed, to a limited degree, the preservation or incorporation of continental legal institutions into Cyprus law: intestate succession follows the Roman-Byzantine norms nurtured by the Greek Orthodox ecclesiastical jurisdiction,55 whereas Turkish Cypriots are governed by the secular family law of Turkey, which has been transplanted in replacement of Islamic legal institutions of personal law.56
A Postcolonial Legal System: First Decades of Independence
Following the consolidation of the republic and under the reign of the doctrine of necessity, the House of Representatives pushed “indigenous” legislation seeking to deal with local concerns and political issues. A second wave of such indigenous legislation followed as the country sought to recover from the 1974 invasions and their socioeconomic consequences. The needs of a modern bureaucratic state have also led to a lot of normative administrative acts derivative of statutory legislation.
Transplantation of English and Greek law also took place to a considerable degree. English legal transplants notably dominated commercial and business law reform in this period. In 1963, shipping legislation (which had been left unreformed under British rule) was adopted in the mold of English law.57 Other transplants eventually replaced (or actually updated) previous English transplants: the Sale of Goods Act 1994 has effectively copied the English Sale of Goods Act 1979;58 the Trade Descriptions Law 1987 replicates its 1968 English namesake;59 and the Copyright Law 1979 is inspired by the English Copyright Act 1956.60 Other jurisdictions were used as models in matters of offshore finance. For example, the International Trusts Law 1992 reproduces much of the wording and concepts found in Caribbean common law jurisdictions.61
Greek law claims a strong influence in public law and in noncommercial civil matters. As to the former, the General Principles of Administrative Law 1999, which was meant to codify the case law of the Supreme Court of Cyprus (itself strongly influenced by Greek academic writings and case law), relied heavily on Greek doctrinal works.62 With regard to private law, two examples from different moments might give an idea of both influence and mutation. One example is the Associations and Foundations Law 1972, which governs many, but by no means all, nonprofit institutions, because it coexists with colonial legislation on charitable companies, trusts, and clubs.63 The law effectively reprised articles 61–120 of the Greek Civil Code with one key difference, which indicates the strong role of the civil service in Cyprus: in Greece, registration is a matter for district courts, whereas in Cyprus it is dealt with by a specialized governmental official (the registrar, or Έφορος).
But the primary field of Greek influence over private law has been family law. Originally, the law of marriage and divorce had been left to the personal law of Cypriots. In the 1990s, following the establishment of state-run family courts, the family law of Cyprus was rewritten in a series of statutes modeled after the 1982–1983 reform of Greek family law. Application of the new family law was gradually extended to all Cyprus residents. Greek law was the direct influence for the law of marriage, divorce (including marital property), children, and parenthood.64 The principal exception concerned adoption, which had traditionally been dealt with in accordance with English law.65 The primary reason was that the reform of adoption law in Greece was still not completed at the time, but another reason may well have been the orientation of the committee member who was entrusted with producing a draft statute. (The strong role in adoption matters of administrative services under the Ministry of Labor and Social Welfare may have also played a part.) Another exception concerns the protection of adults, which has been left outside family jurisdiction (Hatzimihail, forthcoming).
A European Legal System: Accession to the EU
In 2004, after 15 years of internal debates and international negotiations, Cyprus became a member of the European Union. Cyprus did not adopt the practice of some other EU member states, where framework legislation authorizes the executive power to implement EU directives by presidential decrees. As a result, the implementation of European secondary law has come to constitute the principal task of the House of Representatives. Moreover, a constellation of independent regulatory authorities (commissioners) was established in Cyprus. The effect of these commissioners is being felt rather slowly, but surely.66
Most legislation adopted since the mid-1990s—and especially the early 2000s—appears to have been oriented toward preparing the country for European integration and implementing the community acquis. For example, the Law on Unfair Terms in Consumer Contracts 1996 constituted an early implementation—at the time, perhaps more of a transplantation—of Directive 93/13/EEC.67
The accession in 2004 by Cyprus to the Vienna Convention on the International Sale of Goods can also be seen in light of European integration.68 The United Kingdom has not to this day adopted the convention, so by implication much of the sale of goods in Cyprus has been separated from English law. The fact that Cyprus adopted as official text the translation prepared by Greece a few years prior has led to some degree of mutation of what had up to that point been a purely common law subject. Moreover, Cyprus law may now claim, in several cases, two words in Greek for the same concept of the law of sales.
Cyprus’s implementation of legislation has tended to follow prototypes from Greece and the United Kingdom. On certain occasions, however, implementation legislation has asserted a distinctive local touch.69 The most common practice, however, has been to transpose the text of the directive into statute with little attempt to consolidate EU derivative law. Consumer sale of goods is thus treated in a statute distinct from the Sale of Goods Law 1994;70 two separate laws were enacted on the same day to implement the directives on contracts negotiated away from business premises and on distance contracts.71
If written law provides the Cyprus legal system its foundations and building structures, it owes its actual shape to case law. The influence of English common law in Cyprus is such that the country is frequently regarded as a common law jurisdiction. Local case law is important in all legal fields, especially those inspired by continental substantive law, and the EU courts have been increasingly influential across the board.
A distinction should, in principle, be drawn between those legal fields that are regarded as falling under the English common law—notably procedural law, as well as most private law and criminal law—and those fields in which English common law is not regarded as applicable, granting its place to local case law and other authorities. The Supreme Court, however, has extended the doctrines on judicial precedent even with regard to the latter.72
Legal and Political Foundations of Judicial Precedent in Cyprus
According to the Supreme Court, rule by judicial precedent is grounded on the principle of judicial hierarchy and the need for predictability.73 Nevertheless, one can search the constitution in vain for an express legal basis for a case law system, or even for the maintenance of English common law—in contrast to the explicit constitutional provisions regarding the transitional maintenance in force of colonial statutes74 and the continued use of prerogative writs as a remedy granted by the High Court.75 The colonial status quo was instead confirmed by the new Courts of Justice Law 1960,76 which repeated most of the provisions of the colonial Court of Justice Law (cap. 8) enacted in 1953.77 Article 29 the 1960 law has reprised article 33 of 1953 law in stating the “law to be applied” by “every Court in the exercise of its civil or criminal jurisdiction.” According to article 29(1)(c), such law includes “common law and the principles of equity save in so far as other provision has been or shall be made by any Law and so far as not inconsistent with the Constitution.” With the exception of the reference to the new constitution that was added, the new provision simply translates article 33(1)(c) of the 1953 law. Admittedly, the original wording, “doctrines of equity,” has been translated into Greek as “principles of equity,” but this change was less a conscious mutation than a result of the absence of an exact word.78
The provision has been vividly criticized: in the words of Symeon Symeonides (2003: 450), it “went much further than the letter and spirit of the Constitution, and sought to tie the legal system of Cyprus surreptitiously and permanently to the English common law.” No temporal limitation applied, meaning that “a post-1960 decision of the House of Lords would be binding on the courts of Cyprus, and—what is more—even if a subsequent statute of the British Parliament had superseded that decision” (Symeonides 2003: 450).
Symeonides (2003: 450) notes that the whole statute was “drafted by a well-known former servant of Her Majesty’s government” and promulgated by an “inexperienced House of Representatives.” In their defense, the representatives took the easy way out in repeating the preexisting provision. The republic began its life in an uneasy truce between realities and aspirations; its constituent communities were locked in an opposition that soon came to hinder the state’s very operation. Moreover, the various social groups, including the newly formed legal and political elites, were still trying to find their footing in the postcolonial era. One could argue that neither a consensus nor the massive intellectual power needed to engage in large-scale law reform existed in 1960; on the contrary, maintaining the status quo would leave all options open for the future—and the status quo was a common law regime, with the probable exception of administrative law. Even though the right of appeal to the Privy Council was abolished on independence, the new High Court was but the continuation of the colonial Supreme Court in law and in spirit: its foreign president had to be a Commonwealth national, and its Cypriot members boasted of long service in the colonial judiciary.
Symeonides is nonetheless correct in pointing to personal biases as well as what was to become a key conflict within the Greek Cyprus bar. For the past 30 years of British colonial rule, membership in the Cyprus bar had been effectively preserved for people trained in England as barristers (many without a law degree).79 Following independence, bar membership began expanding significantly. An increasing number of new lawyers came from nonlegal families, and the vast majority of new entrants to the profession held university degrees from the Greek law schools (aided by scholarship policies, entrance exams, and especially the lack of university tuition). This situation resulted in a generational as well as a class conflict whose traces are still visible today. Maintenance of the English common law thus became a vehicle for the domination of the established group of colonial advocates—and their children—in the emerging legal profession of Cyprus. The absorption of the Supreme Constitutional Court, after only three years of existence, by the High Court affirmed the long-term continuation of a monolithically common law judiciary. But this internal conflict is best illustrated in the use of the English language. After independence, the legal system took three decades to complete the transition from English to the republic’s official languages. The basic colonial statutes were translated only in the 1990s. To this day, no official translation has been done of the principal instrument of civil litigation, the Civil Procedure Rules.80 It is perhaps not mere coincidence that it took a little more than three decades after independence for the first Cypriot graduates of a Greek law school to reach the appellate bench.
The Common Law in Practice
Case law might rule Cyprus law in its entirety, but the sources used and the extent of discretion allowed to judges depends on the subject at hand.
Cyprus Rules of Precedent
The Supreme Court has adopted the English rules of stare decisis, as contrasted to the more liberal U.S. approach.81 It has, moreover, reserved its right to reverse its own judgments—a judicial policy grounded on English judgments and dicta, but asserted more vigorously in Cyprus.82 The district courts, family courts, and specialized tribunals are bound by Supreme Court judgments, although district judges are known to have held contrary to Supreme Court rulings by invoking English authorities when applicable. A single Supreme Court justice sitting at first instance is on the contrary not considered as an “inferior court” but is nonetheless bound by the decisions of an appeals bench.83 The full bench, however, may reverse its own case law. An appellate panel should accordingly be able to explicitly reject (or reverse) the rule created by another appellate panel. Consistency is usually sought after, but a line of precedent has been disregarded in some cases, leading to a contrary line of precedent coexisting with the established one.84