BEYOND OUR CIVIL SOCIETY (BOCS)
No country lives a hundred percent up to its written constitution.
As from the end of the year 1963 we have seen many violations of the 1960 Constitution in Cyprus culminating as we know in the years 1974 and 1975. These are comparable in size only to the disaster that occurred in the years 1570 and 1571 due to the expedition of Lala Mustafa Pasha, the conquest and the establishment of the Ottoman Rule in Cyprus. This rule subsided under British Rule, but never vanished, (*1) even when Britain declared Cyprus a Colony in the year 1925.
Many traditions and institutions established in 1570 continued to function under the colonial legislation of Cyprus and remained in force in the 1960 Constitution by explicit provisions or implicitly under Article 188.
In 1964, the Supreme Court of Cyprus being unable to oversee the implementation of many violated provisions, resorted to the law of necessity (*2), accepting the rule salus populi summa lex esto.
Under this rule, what was useful, continued to be applied, not being vitiated by what had collapsed, as prescribed in the civil law principle utile per inutile non vitiatur.
The new status quo had been deemed as abnormal (έκρυθμη) and left marginal and hopeful expectations for the return of the island to legality and constitutionality.
Under these rulings there was no pause in the implementation of the 1960 Constitution, maintaining all the granted characteristics of a “constitution octroyée” (*3) such as these happen to be.
The Greek Cypriots declared by an overwhelming majority their loyalty to this Constitution in the referendum of 24th April 2004.
The Republic of Cyprus continued to be recognized by all the civilized states and international organizations of the world, except Turkey which insists to consider it a vanished state.
It is up to Turkey to give the reasoning for their decision and act of non-recognition and not up to us to infer an explanation.
As we can see, the bond between the millet-bashi and the Sultan had simply been replaced by the 1960 Constitution and the accompanying international agreements.
This bond relied on the sword of Lala Mustafa and the Koran based on the premise of the “creed and the oath of subjection.”
The sanction for non-compliance is stated in the words of Ethnarch Procopios of Constantinople and New Rome, Ecumenical Patriarch in the late 18th century addressed to the Bishop of Paros, Naxos and the Aegean Sea warning him that negligence on his behalf to abate a revolt against the Sultan, would have as a consequence:
“your holiness to suffer without prejudicium (*4) all those ills you are unable to reflect upon, for this carelessness of yours, without any mercy, and that you would repent in vain.” (*5)
Only in the case of Cyprus, it is not his holiness that had suffered, but … the people who assumed the responsibility and suffered the consequences.
Freedom is nowhere a licence as such, even in the most widely liberal states. Licence and improvisation incur only damage and loss, pain and tears. Appeal to the international law in a vague manner is not valid without citing the specific international instrument involved in the specific circumstances. The law of nations relies on the will of nations or at least the greater number of them. (*6) As ius voluntarium this law is the product of coincidence of political wills between states.
It is subject to the principle of reciprocity and has one and only one limitation, its subordination to natural law on which positive law is founded.
(*1) See The Evcaf of Cyprus, p. 92-93, Cyprus Administrative Law by Zaim M.Nedjati LL.B. (Hons), Nicosia, 1970
(*2) See Cicero De Legibus III 3; Rudolf Von Ihering, Law as a Means to an End, 1977. P. 317; Law exists for the sake of Society, not society for the sake of law; Attorney General versus Mustafa Ibrahim and Others (1964) 3JSC, also 1964 C.L.R.
(*3) See paragraphs 16.4 and 18.8.3 Argyro Toumazou, Polity and Cyprus, Nicosia 2011.
(*4) praejudicium prior trial before the court.
(*5) See DAVLOS, Athens 2007, page 57-58.
(*6) See C. Th. Efstathiades, International Law, Athens, 1977, page 32.