Making an Even Number Odd: Deadlock-Avoiding in a Reunified Cyprus Supreme Court

Article excerpt

Abstract

Substantive talks to re-unify the island of Cyprus re-commenced in September 2008. Sadly, the gulf between the two communities remains wide. The rejected 'Annan Plan' proposed a (federal) Supreme Court that would have included three non-Cypriot (deadlock-breaking) judges. This should not be preferred. However, to dispel any fears concerning the likely consequences of their absence, it is the purpose of this article to outline how any reunified Cyprus Supreme Court can rely on absolute political equality (alone), whilst still remaining functional and free from potential deadlock. The various procedures devised confirm that an even number can be made into an odd.

I. INTRODUCTION

THE reunification of Cyprus still eludes. The most recently completed process1 culminated in a referendum, on 24 April 2004, in which the Turkish Cypriots voted (convincingly) in favour of the so-called 'Annan Plan' sides will have to make significant compromises. Yet, as this author has recently demonstrated in a recently published book covering many of the most highly disputed matters, variation from the rejected Plan often need not affect / disadvantage either side3.

Cyprus - like Sri Lanka, Georgia and Moldova (to cite a few other similarly troubled societies) - is a country where any constitutional settlement would be only the start of what would be a long and difficult road to reconciliation. Success cannot and 'should not' be guaranteed; occasionally states do fail; the responsibility to avoid this happening must lie with the local population. One avoidable reflection of this, in the rejected Plan, was the inclusion of foreign (non-Cypriot) judges on the Supreme Court. Its progeny is clear and understood: the ad hoc tribunal system in international law. Still, attempts to "internationalise. local problems should be avoided. In respect of the Supreme Court of the United Cyprus Republic, this was not done.

II. ANNAN PLAN (FINAL VERSION): PROVISIONS

The Supreme Court shall uphold the Constitution of the United Cyprus Republic ("the supreme law of the land"4) and ensure its full respect5 by other federal organs and the constituent states6.

The Supreme Court shall be composed of 15 judges7. Six judges shall hail from each constituent state, plus three judges who are not citizens of the United Cyprus Republic8. The judges from the constituent states shall be citizens of the United Cyprus Republic9. The three judges who are not to be citizens of the United Cyprus Republic shall not be subjects or citizens of "the Hellenic Republic or the Republic of Turkey or of the United Kingdom of Great Britain and Northern Ireland"10. Despite the inclusion of the non-Cypriot judges, political equality, guaranteeing effective participation for both communities, being a central requirement in any settlement on the island, is maintained11.

The Court shall have its own Registry12. There shall be a Registrar, who shall not be a citizen of the United Cyprus Republic, and two Deputy Registrars who shall not hail from the same constituent state13.

The Supreme Court shall assume its functions upon entry into force of the Foundation Agreement14, and evolve in its operation during a transitional period15. It shall come to sit (either) as a Constitutional Court or as a Court of Primary Federal Jurisdiction16. However, only those who shall serve as members of the Constitutional Court shall assume their functions immediately upon entry into force of the Foundation Agreement17. That is, the three non-Cypriot judges and three judges hailing from each constituent state18. The remaining six judges shall serve on the Court of Primary Federal Jurisdiction19 and, under the rejected Plan, were to have been "... appointed by the Presidential Council in the course of the month of July 2004..."20 Until then, the "other. (Constitutional Court) judges of the Supreme Court were to have exercised the functions attributed to the Court of Primary Federal Jurisdiction21. …