Thursday, March 3, 2011

Point #7 of November 30 1963 proposal - Debate it!

Point 7. The administration of Justice to be unified.

The Constitution separates the administration of Justice on the basis of communal criteria by providing that in all cases, civil and criminal, a Greek must be tried by a Greek Judge, a Turk by a Turkish Judge and that cases, however trivial, involving both Greeks and Turks, must be tried by a mixed Court composed of Greek and Turkish Judges.

This division is not only entirely unnecessary but, what is more important, is detrimental to the cause of Justice. The very concept of Justice defies separation.

The mere fact that a Greek must be tried by a Greek and a Turk by a Turk is in itself a slur on the impartiality and integrity of the Judges. It is inevitable that when a Judge assumes jurisdiction on the basis of communal criteria he begins to think that the interests of his community stand in danger of being jeopardized and that he is there to protect such interests. The Judge will, therefore, gradually lose the sense of being a judge above communal criteria. This is particularly so in mixed cases, where each Judge will eventually come to feel that his presence is necessary in order to protect the party belonging to his community from possible injustice by his brother Judge. As a consequence of this, Judges will lose their respect for each other, will begin to regard each other with suspicion and may develop the mentality, not of a judge, but of an arbitrator appointed by one of the parties to a dispute. This mentality will inevitably seep into the minds of the people as a whole, who will consider Judges as advocates in the cause of their community and expect them to act as such.

It is another consequence of the dichotomy of Justice that the public is bound to compare sentences imposed by Greek Judges on Greeks and by Turkish Judges on Turks and to draw conclusions from such comparisons. In view of the fact that the jurisdiction of Judges is based on communal criteria, the result of such comparisons will be to foster the belief that there exists separate Justice for Greeks and Turks. This will diminish the respect of the people for the administration of Justice. Thus Justice will not only cease to be done but will also cease to be seen to be done.

Nothing is more certain to undermine Justice and to bring it into disrepute than the situation described above.

Apart from the aforesaid most important considerations, the system which has had to be devised in order to implement these provisions of the Constitution is also unnecessarily costly.

In view of the fact that Greek cases are more numerous than Turkish cases, the Greek Judges are burdened with a much larger volume of work than the Turkish Judges.

Due to the separation imposed by the Constitution, Turkish Judges, even if not fully occupied and although willing, cannot relieve their Greek colleagues by taking cases in which the parties involved are Greek. There must, therefore, be maintained a greater number of Judges than would be warranted by the number of cases if they could be evenly distributed. The fact that even a trivial case, as well as a preliminary enquiry, must be heard by two Judges if the parties belong to different communities results in unnecessary waste of time and money, delay and hardship to the litigant, and is yet another reason for having a greater number of Judges than would otherwise be necessary.

A further result of the separation of the administration of Justice is the duplication of registry work and therefore of court personnel, thus creating an additional financial burden.

The measure of civilization of a country and its stability greatly depend on the fair administration of Justice and on the confidence enjoyed by its judiciary. If the principle of Justice is undermined the consequences to the State cannot but be serious and, in Cyprus, if the present system continues, Justice is certain to suffer.

Before the Constitution came into force, the court system prevailing in Cyprus had been operating extremely well for many years, Justice being administered by Greek and Turkish Judges, honourably and impartially, irrespective of community. There can be no greater proof of this than the fact that even at the height of intercommunal strife, when Justice was still unified, never was a shadow of doubt cast on the integrity of the Judges or any complaint made about their impartiality.

There is, therefore, no reason for the imposition of restrictions on the jurisdiction of the Judges of the Republic, on communal criteria, thus establishing a system which is bound to undermine justice and is most impracticable in its application.

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As either unitary state or federation solutions are discussed as replacements to Cyprus' 1960 and Turkey's 1923 unworkable constitutions, should we abide by "if a right is a right too many for Turkey's Kurdish community (circa 23% of population) then that right is a right too many for Cyprus' tCypriot community too (circa 15%), and vice versa." Is the adoption of this fair logic the catalyst to securing just solutions for both UN countries.