Crisis has been a defining and underlying theme of Cypriot constitutional law since long before Covid-19. Constitutional genesis has been externally driven and the bi-communal (Greek and Turkish) structure of the State collapsed four years after the establishment of the Republic with the withdrawal of Turkish Cypriots from the constitutional organs. The inability to continue to function in accordance with the plethora of bi-communal constitutional provisions, resulted in the invocation of the law of necessity in 1964 (Ibrahim Decision). The Cypriot version of necessity is unique in its longevity and its prospective effect, since it allows for the introduction of measures that would otherwise be unconstitutional but only where the norms were introduced for the purpose of overcoming the absence of the Turkish-Cypriot community. Accordingly, the law of necessity relates exclusively to the suspension of the invalidity of norms and functions that are in conflict with the Constitution (the primacy of the Constitution provision (article 179)). The invocation is subject to judicial control on the basis of establishing an existential necessity and on the basis of proportionality applied with intensity.
At the same time, the Constitution provides for the declaration of a state of emergency (article 183) that has never been triggered. That provision would have been unable to remedy the collapse of state organs because of its limited scope and the procedural requirements entailed that necessitated participation of the community that had withdrawn. Therefore, Cyprus is perhaps the only State that has made necessity the norm for the purpose of ensuring the survival of the State. Here emerges the first dimension of the Cypriot constitutional paradox, in the sense that the Republic faced such a necessity that was not manageable through the triggering of the provision for emergency situations. Therefore, resorting to the law of necessity has formed the safety net for the continuation of the functioning of State organs and this has been the applicable formula since 1964. Here emerges the second dimension of the paradox, in the sense that constitutional law evolved in unique circumstances, but with a gradual formation of a sense of normalization due to the longevity of resorting to the necessity formula.
The Cypriot puzzle has another important element, namely colonial legislation that pre-existed the establishment of the Republic continued to be in force until the legislature exercised its powers on the matter (article 188).
The Covid-19 crisis brought to the surface the preceding idiosyncrasies and resulted in the third dimension of the paradox in the sense that a new form of necessity arose. A State that has made use of the law of necessity could not activate that long-standing formula in the given situation because the current health crisis is not the result of the collapse of the bi-communal State. At the same time, the proclamation of a state of emergency has not materialised, because the relevant provision is rigid in the sense that it does not include public health as a ground for invocation and the provision reflects article 15 ECHR on derogations in terms of textual structure.
Specifically, article 183 (1) provides that a proclamation of emergency is possible in case of war or other public danger threatening the life of the Republic or any part thereof. The Council of Ministers is the empowered organ for triggering the provision, subject to a veto power held exclusively by the President after 1964. The proclamation shall specify the articles of the Constitution which shall be suspended for the duration of such emergency, with article 183 (2) listing such articles: the right to life only in so far as it relates to death inflicted by a permissible act of war, certain types of compulsory labour, the right to liberty and security of person, the free movement within the Republic, the inviolability of the home, the respect for, and to the secrecy of, his correspondence and other communication, freedom of expression, the right to freedom of peaceful assembly, the requisition of property without compensation, the right to practice any profession or to carry on any occupation, trade or business and the right to strike. Such a proclamation shall then be laid forthwith before the House of Representatives (article 183 (4)) and the House shall have the right to reject or confirm such proclamation of emergency (article 183 (5)). The duration is set at a maximum of two months and the duration can be prolonged by the House of Representatives. Interestingly, the provision does not specify the duration of any such prolongment, with the only safeguard being that the President, after 1964, has the power to veto it. While a proclamation is in operation, the Council of Ministers can make any ordinance strictly connected with the state of emergency having the force of law, subject again to the veto power of the President.
The combined result is that there are serious substantive constitutional constraints on the use of emergency powers, namely the clear lack of reference to reasons of public health. Moreover, the rights that can be suspended do not include article 14 which states: “No citizen shall be banished or excluded from the Republic under any circumstances”. This is an important point given that one of the most controversial measures introduced related to the ban on entry to the Republic of citizens. This was then qualified by requiring that anyone entering had previously tested negative for the virus at the point of departure. In addition, on arrival in Cyprus, they are placed in compulsory and controlled quarantine for two weeks in hotels used by the State for that purpose.
Therefore, the proclamation of a state of emergency was not constitutionally possible and has not taken place. Alas the real health emergency remained in need of management and the tools for doing so had to be found extra-constitutionally. The direct consequence is the impact on the separation of powers, through the side-lining in effect of the legislature, and the restriction on accountability that its ‘checks and balances’ role would have secured. As a corollary, the need for managing the crisis remained but it was to take place under normal legislation. This represents yet another dimension of the paradox, because the measures used were based on normal but never used before legislation, while at the same time there were serious doubts as to the constitutionality of both the legislation and the executive decrees.
The solution adopted can be characterised as a ‘back to the future’ moment: the sole legislative basis is to be found in colonial legislation dating back to 1932. The Quarantine Law (Cap. 260) was introduced during British rule and before the establishment of the Republic, thus in the period without a constitutional foundation and in the absence of constitutional primacy. It remained unused and it had been amended only once before the current situation. The specific law enables in effect the executive to declare areas as infected and to impose a wide range of restrictive measures in such areas by decree. The overall effect of the legislation is that it enables the issuing of ministerial decrees in relation to areas declared as affected, thus concentrating powers at the executive level and limiting the role of the legislature to that of an observer that nonetheless can intervene in amending the relevant law. From this arises the constitutional issue of compliance of the decrees with the Constitution that is to be assessed on the basis of the principle of proportionality in cases brought before the courts by personally and individually affected natural and legal persons.
One case (Case 301/2020, 16th April 2020 -Available only in Greek) was examined by the administrative court in the context of interim proceedings. The Court was asked to suspend by judicial order the ministerial decree imposing restrictions on entry to the Republic for being ultra vires the enabling act. The Court dismissed the claim on procedural grounds, namely the inability to challenge measures of a regulatory nature, the need for the contested act to be obviously and manifestly illegal in interim proceedings, and on standing grounds.
The interesting part of the decision though relates to the finding of the Court that regardless of the above reasons, the application failed because the measures introduced by the challenged decree came within the scope of governmental acts (acte de gouvernement) and is as such excluded from judicial review. The finding of the Court was based on case law originating from Greek Administrative law that identifies governmental acts on a case-by-case basis. The Cypriot legal order had in the past followed this approach and applied a high degree of judicial scrutiny in relation to claims for non reviewable acts. Moreover, the instances where an act was classified as governmental related to public security, foreign relations, defence, the issuing of passports and measures relating to the internal function of the House of Representatives. Departing from the preceding cautious and narrow approach, the Court for the first time accepted that public health grounds could be included in the list of governmental acts. The decisive criterion for the Court was the severity of the situation of a pandemic and the acceptance of the expertise of the decision-maker that the Court lacked. The Court stated that if it entered into the matter then the view of a court of law would replace the view of experienced experts and policymakers.
A final point about the decision relates to the argument from the side of the executive that construed the restriction of entry measures as coming within the scope of internal movement, therefore falling within the scope of article 13 rather than article 14 of the Constitution. Article 13 relates to the free movement within the Republic and is subject to constitutionally provided grounds for restrictions. The argument stated that article 14 should be approached as only relating to the prohibition of exile and deportation of citizens and not to proportionate and temporary restrictions of entry for other reasons. Such measures should be construed as coming within article 13, thus can be justified as valid restrictions if they are proportionate. The Court did not rule on the matter but in obiter it was stated the argument was reasonable.
In conclusion, the Cypriot example is interesting in that the promulgation of emergency was pre-empted by the content of the Constitution’s provisions, while at the same time the use of the law of necessity in a system so accustomed to it was also not applicable. The use of a colonial law provided the solution yet with legal consequences that, at first sight, run contra to constitutional scrutiny. The court’s decision is worrying in that it seems to expand the pre-existing understanding of acts of government to situations like Covid-19. If that is the approach, then the proportionality test that was to take place when the case was to be examined as to its merits, would be in effect excluded. It will also place measures of questionable constitutionality outside the reach of effective judicial scrutiny in times where that may be the only safety net. The constitutional paradox of the Cypriot experience is therefore multidimensional and brings to the surface persistent structural problems. When those are coupled with the normalisation of necessity, the system becomes able to respond to a new type of crisis but at the cost of constitutional elasticity.
Constantinos Kombos, Associate Professor of Public and EU Law, Law Department, University of Cyprus
(Suggested citation: C. Kombos, ‘Covid-19 and the Cypriot Example: A Constitutional Paradox’, U.K. Const. L. Blog (7th May 2020) (available at https://ukconstitutionallaw.org/))