This is a book about public law, judicial review and constitutional adjudication, primarily in Cyprus but also elsewhere.
Judicial review and constitutional adjudication, as the author explains in his book, have played a very important role in the preservation of the Republic of Cyprus as an independent, sovereign and internationally recognized State, despite the political upheavals which have engulfed the island since independence in 1960.
The constitutional and legal institutions and traditions of Cyprus are perhaps unique in the world, in the sense that the overall constitutional and legal system of the island represents a veritable mosaic and combination of diverse elements, including common law, continental law, European law, the jurisprudence of the European Court of Human Rights and American law and jurisprudence, principally the fascinating jurisprudence of the Supreme Court of the United States.
Beyond Cyprus, the author discusses issues of both constitutional theory and practice arising in a number of jurisdictions, the principal one being the United States of America and its Supreme Court, with reference however also being made to some others, principally India and its Supreme Court. Various theories and topics of judicial review and constitutional theory are addressed in the chapters that follow, with judicial methodology being one of them.
This book will be of interest to those who are interested in the topic of judicial review and in political and legal developments in Cyprus.
Contents
PREFACE xi
TABLE OF CASES xiii
INTRODUCTION 1
A. CONSTITUTIONAL PERSPECTIVES AND DEVELOPMENTS 5
THE ZURICH AND LONDON AGREEMENTS AND
THE 1960 CONSTITUTION 7
(i) Overview 7
(ii) Treaties 8
(iii) The 1960 Constitution 9
The Executive 11
The Legislative Power 13
The Judiciary 13
The Public Service 15
Independent Officers of the Republic 16
(iv) A Critical Appraisal 16
THE CONSTITUTIONAL CRISIS AND THE 13 PROPOSALS 21
THE DOCTRINE OF NECESSITY 31
DEVELOPMENTS OF THE THE DOCTRINE OF NECESSITY IN CYPRUS
FOLLOWING IBRAHIM 57
(i) An Overview 57
(ii) Fundamental Human Rights and the Doctrine of Necessity 59
(iii) Amending the Constitution and the Doctrine of Necessity 69
(iv) Transformation of the Doctrine of Necessity and some
Reflections on its Development and Current Status 78
(v) Review and Comparison of Ibrahim with Cases from
Other Countries on Issues of Breakdown and Necessity 82
(vi) EU Law 97
THE CONSTITUTION IN OPERATION FOLLOWING 1964 AND THE TURKISH INVASION OF CYPRUS IN 1974 98
B. THE CONSTITUTION, THE SUPREME COURT AND JUDICIAL REVIEW 103
INTRODUCTION 103
JUDICIAL REVIEW, DEMOCRACY AND THE RULE OF LAW 105
SUPREMACY OF THE CONSTITUTION AND FORMS AND METHODS
OF JUDICIAL REVIEW IN CYPRUS 110
(i) Supremacy of the Constitution 110
(ii) Methods of Constitutional Review 112
PRINCIPLES OF CONSTITUTIONAL AND JUDICIAL REVIEW
AS APPLIED IN CYPRUS 128
CONSTITUTIONAL INTERPRETATION 137
THEORIES AND ISSUES OF CONSTITUTIONAL ADJUDICATION 144
(i) Originalism 144
(ii) Literalism 146
(iii) Legalism 147
(iv) Developed Version of Legalism 148
(v) Pragmatism 151
(vi) Process 152
(vii) Textualism 158
(viii) Context 159
(ix) Text, Context and Derivation of Rights 165
United States of America 166
Cyprus 174
(x) Proportionality 179
(xi) Constitutional Principles – Neutrality in Adjudication 181
(xii) Constitutional Adjudication and Principles of Law Inherent
in the Constitutional Order – The Theory of Dworkin 185
(xiii) Original Meaning and the Living Constitution –
an Intermediate Position 187
(xiv) Courts and Policy 189
CONSTITUTIONAL ADJUDICATION – GENERALITIES AND
INTERMEDIATE PREMISES 219
SEPARATION OF POWERS 227
(i) The Legislature and the Executive 229
(ii) The Judiciary and the Other Branches of Government 239
(iii) Separation between Political and Administrative Power
and Jurisdiction 243
INCOMPATIBILITY OF THE LAWS OF CYPRUS WITH EU LAW 246
NON-JUSTICIABILITY 251
C. JUDICIAL REVIEW AND THE DOCTRINE OF NECESSITY 257
D. JUDICIAL REVIEW AND CONSTITUTIONAL AMENDMENT 263
E. BACK TO THE 1960 CONSTITUTION 277
F. CONSTITUTIONAL RECONSTRUCTION – THE FEDERAL DIMENSION – JUDICIAL REVIEW IN THE NEW CYPRUS 285
CYPRUS AND FEDERATION 285
INVASION, OCCUPATION AND FEDERATION 287
THE JOINT DECLARATION OF FEBRUARY 2014 AND
SUBSEQUENT NEGOTIATIONS 292
JUDICIAL REVIEW IN A FEDERATION 296
THE STRUCTURE AND FUNCTION OF THE JUDICIARY AND JUDICIAL
REVIEW IN A FEDERAL CYPRUS, AS PROVISIONALLY AGREED
BETWEEN THE TWO SIDES 299
(i) General 300
(ii) The Federal Supreme Court 301
(iii) Other Federal Courts and Federal Offences 304
(iv) Decision-making in the Federal Supreme Court 305
CONCLUDING REMARKS 310
G. PREROGATIVE ORDERS 311
Introduction and Scope 311
Types of Prerogative Order 318
(i) Certiorari – Nature and Grounds for the Issue of Certiorari 318
(ii) Prohibition 329
(iii) Mandamus 330
(iv) Quo Warranto 331
(v) Habeas Corpus 332
H. ADMINISTRATIVE LAW 335
PRINCIPLES OF ADMINISTRATIVE LAW 335
ACTS OR DECISIONS SUBJECT TO JUDICIAL REVIEW 338
LEGITIMATE INTEREST AND LOCUS STANDI 354
TIME LIMIT FOR JUDICIAL REVIEW 360
GROUNDS FOR ANNULMENT 366
(i) Violation of the Constitution 366
(ii) Violation of any Law 367
(iii) Excess or Abuse of Powers 369
(iv) Proper Records 370
(v) Constitution, Composition and Functioning of Collective Administrative Organs 371
(vi) Misconception of Fact and Law 374
(vii) Due Inquiry 376
(viii) Requirement of Due Reasoning 377
(ix) Essential and Basic Principles of Administrative Law 379
POWERS OF THE SUPREME COURT AND OF THE
ADMINISTRATIVE COURT AS ADMINISTRATIVE TRIBUNALS 382
EFFECT OF DECISIONS AND JUDGMENTS
OF THE ADMINISTRATIVE COURT 383
CIVIL LAW REMEDIES UPON ANNULMENT
OF ADMINISTRATIVE DECISIONS 386
PROVISIONAL ORDERS 388
LIMITATIONS OF ORDINARY JUDICIAL REVIEW 392
SUBSTANCE AND METHOD 408
I. CONCLUSION: A BALANCED APPROACH
TO A PERENNIAL PROBLEM 415
INDEX 427
