I
 
The meaning of "Cyprus law' and "codification"

 

 

  1. Does Cyprus Law need codification?

    2. Before embarking upon the examination of this question and give an answer to it we have to clarify what we mean by those two expressions "Cyprus law" on the one hand and "codification" on the other.

  2. Cyprus, until the 16th August 1960, was a dependent territory - a Crown and subject to its sovereignty.1) As a Crown Colony Cyprus had no international personality and for all her international relations Her Majesty's Government in the United Kingdom was responsable.2)
When however, on the 16th August 1960 Cyprus, on attaining independence, became "an independent and sovereign Republic"3) and its Constitution came info force on that day, 4) it became a subject of international law and acquired international personality. The question arises whether as from that date the Republic of Cyprus has broken any legal links with the past and in the very appropiate words of Sir Arnold McNair, as he then was, "a break in the legal continuity"5) occured and the Republic started with a "clean slate"6) or wheather even without any legal provisition being made in this respect either in the Constitution or in any Law made thereunder the precious law continues to apply to the Republic until amended or repealed by the Republic as a new sovereign State.

 

Although the matter is usually settled by the international or other constituent document wherebly the new state is created nevertheless there is no unanimity on this point among the writers of international Law.

 

Two opposite views were expressed.7)

 

According to the one the pre-existing law and legal order continues in the new State until amended or repealed by such State in exercise of its sovereign powers, as a law already enacted cannot be repealed or cease to operate unisess repealed or replaced by another law, and change in the sovereignty does not constitute such a circumstance.8)

 

On the opposite view, however, there is no rule of international law in support of time continuation of the former legal order and legislation and the new State in the exercise of its sovereign righrs may take any decision on the matter it may deem fit.9)

 

The Supreme Constitutional Court in the case of The Republic and Zacharia 2( R.S.C.C. at p. 6) accepted the first view. It said in its judgment that -

 

"On the 16th August, 1960, by the emancipation of the former British Colony of Cyprus the Independent Republic of Cyprus came into being. In accordance with the most widely accepted principles of International law a change of sovereignty of this nature would not disrupt the "continuity" of law" between the former Colony and the new Republic. Nevertheless it appears that ex abundanti cautela Article 188 was included in the Constitution."

 

 By paragraph 1 of that Article it is provided that -

 

"Subject to the provision of this Constitution and to the Following provisions of this Article, all laws in force on the Coming into operation of this Constitution shall, until amemded, whether by way of variation, addition or repeal, by anu law or communal law, as the case many be, made under this Constitution, continue in force on or after that date, and shall, as from that date be construed and applied with such modification as may be necessary to bring them into conformity with this Constitution.10)

 

 By paragraph 2 of that Article certain legislation, for the enactment of which under the Constitution a separate majority of the Greek and Turkish membres of the House of Representatives was required (such legislation relating to the Electoral Law, the municipalities and to taxation) continued to remain in force only for a limited period.

 

The Courrs in applying any legislation thus continuing to reamin in force shall apply it with such modification as may be necessary to bring in into accord with the constitutional provisions.11)

The word "law" includes any subsidiary legislation made by virtue of a law remaining in force and the word "modification" includes amendament, adaptation and repeal.12)

 

Which was such Cyprus law is clarified by the Constitution itself nad by section 29 of the Courts of Justice Law 1960, which was enacted five months after the date of the coming info force of the Constitution.

This law includes -

 
    1. the laws saved under Article 188 of the Constitution subject to the conditions laid down therein;

      2.  

    2. the common law and the doctrines of equity save in so far as other provision has been or ahall be made by any law made or becoming applicable under the Constitution or any law saved as in the previous paragraph provided and in so far as they are not inconsistent with or contrary to the Constitution;13)

      3.  

    3. the Law and Principales of Vakf (Ah Kamul Evkaf) referred to in Paragraph 2 or Article 110 of the Constitution;

      4.  

    4. the Acts of Parliament of the United Kingdom Which were applicable to Cyprus immediately before Independence Day save in so far as other provision has been or shall be made by any law made or becoming applicable under the Constitution and in so far as they are not inconsistent with, or contrary to, the Constitution;14)

      5.  

    5. with regard to the juridisction of the Supreme Court in Admiralty and matrimonial cases the law applied in England before the 16th August, 1960;15)

      6.  

    6. the laws made by a Communal Chamber which are applied by the communal courts concerned under the Constitution;

      7.  

    7. the law of the respective Church,16) which is applied by the Ecclesiastical Courts of Greek-Orthodox Church or of any of the religious group of Armenians, Latins and Maronites.
 
  1. The laws of every State should not only be just but precise and easily understandable by, and accessible to, person affected by them. It is only in this way that such person will realize that justice is properly adminisered according to law.
  For this purpose whenever the law was not ascertainable but vague and doubtful and its bulk is so great as not be easely traceable resort was made to its codification.17)

The expression codification has been differently understood at various times.

 

Thus when Justinian complied its Corpus Juris Civilis18) the codification of the pre-existing law was restricted in the compliation of extracts from the opinions of Reform jurists and edicts of the Roman emperors which were adapted to then prevailing conditions. Such extracts were set-out in the codification unsystematically in the same from in which they were, without any further elaboration or any effort to formulate the general principles to be drawn therefrom, as it done in all modern codes.19)

 

Once the codification was made it was considered that the law was frozen and was the one contained in the codification and no further development of that law could be made either by scientific work of the jurists (la doctrine) or by juridical construction (la jurisprudence).

 

For this reason Justinian prohibited the scientific elaboration and interpretation of his codification allowing only its translation into Greek and the use of marginal titles and indices.20)

This concept of codification tallies with the old ideas, of past times.

As point out by Geny21) -

"On attribute a la Codification le caractere d'une renovation, totale et profonde, du systeme juridique lui-meme, d'une sorte d'immobilisation de tous ses elements, qui non seulement aurait agi sur les matieres memes, refondues par le legislateur, mais qui devrait reagir aussi sur les procedes d'elaborations scientifiques du droit dans son ensemble." The same policy was followed by Frederick the Great, the apostle of Enlightment, when in publishing its Prussian Code consisting of sixteen thousand articles imposed the same prohibition as to render superfluous the work of the lawyers.22)

When, however, the codification of the French law was made in the eighteen century and especially its famous Code civil was published the position was changed.23) The Code was not considered as sacrosanct and not liable to interpretation both by the jurists and the Courts.

As emphasized by Portalis, one of the main draftsmen of the Code

"L'office de la loi est de fixer, par de grandes vues, les maximes generales du Droit, d'etablir des principales feconds, en consequences, et non de descendre dans la detail des questions qui peuvent naitre sur chaque matiere - C'est au magistrat et au juristconsulte, penetres d'esprit general des lois, a en diriger l'application."24)

 

 For this reason Beudant25) says that they give the name of a Code "a quelques lois qui renferment un systeme de legislation sur une matiere determinee. Un Code est une loi qui ne differe des autres que par un etendue et une importance."

Every Code, therefore, is subject to construction and application as an ordinary law.

The Code Civil does not deal specifially with the torts or vicil wrongs26) nevertheless from the construction of its five articles 1382 to 1385 by the courts (jurisprudence)27) the whole law of tort in force in France was evolved.28)

 

Ever since the same policy has been followed and culminated in the provision of Article 1 of the Swiss Civil Code under which where no legislative provision or custom exists, the judge will pronounce in accordance with the rule which he, as legislator, would have adopted.29)

If we now turn to the English law a codifying statute is one which purports to state exhaustively the whole of the law upon a particular subject, the draftsman attempting to subsume in his code both the pre-existing statutory provisions (as in a consolidation Act) and also the common law rules relating to the matter.30)

 

A codifying statute is different from a consolidating Act. A consolidating Act usually repeals a number of prior statutes, but reproduces them in substance, the presumption being that it is not the intention of the legislature to after the law by a mere consolidating Act but merely to collect it and fit it together in one Act, unless an intention to alter the law plainly appears.31)

 

A codifying Act is approached in a different spirit from a consolidating Act. As observed by Lord Herschell in the leading case Bank of England v. Vagliano Brothers32) (at pp. 144, 145) -

"I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then assuming that it was probably intented to leave it unaltered, to see it the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be reated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated."33)

 

 When the common law is superseded by an enactment intended to be a full and complete statement of the lae, it must be interpreted free from glosses or interpretation derived from the common law not justified by its terms.34)

Although certain subjects of common law have been codified newertheless its main bulk has been still contained in over three hundred thousand reported cases.

As pointed out in the proposals for English and Scottish Law Commissions35) -

"The result is that it is today extremely difficult for any one without special training to discover what the law is on any given topic; and when the law is finally ascertained, it is found in many cases to be obsolete and in some cases to be unjust. This is pl;ainly wrong. English law should be capable of being recast in a from which is accessible, intelligible and in accordance with modern needs." For this purpose bu the law Commission Act, 1965 two Law Commission were created one for England and one for Scottland the duty of each of which is "to take up and keep under review all the law with which they were respectively concerned with a view to its systematic development and reform, including in particular the codification of such law. the elimination of anomalies, the repeals of obsolete and unnecessary enactments, the reduction of the number of separate enactments and generally the simplification and modernisation of the law" (section 3).

Unlike other already existing standing bodies for the reform and revision of the law, such as the Law Reform Committee and the Criminal Law Revision Committee36) the Law Commission has a duty to look at the law as a whole and to make proposals for its development in a systematic way.37)

Certain of the Law Commissions' proposals were implemented by legislation.38)

 

 

 
II
 
The codification and consolidation in Cyprus

 

 

It has already been said39) that on the British occupation of the island provision was made about the law to be applied.

By the Cyprus Courts of Justice Order 188240) in every Ottoman action. that is to say one in which the defendant or all the defendants are Ottoman subjects, Ottoman Law, that is to say the law which was in force in Cyprus on the 13th day of July 1878, ahall apply and in any foreign action, that is to say one in which any of the defendants is not an Ottoman subject, English Law shall apply.41)

 

The Ottoman Law applicable to Cyprus contained five Codes -

    1. the Ottoman Penal Code42) which was repealed and replaced in 1928 by the Cyprus Criminal Code enacted by an Order in Cpuncil. The purpose of the Cyprus Criminal Code was to provide for a Code in substitution of the Ottoman Penal Code which was incomplete and unsuitable to local condition.43) It appears that the Cyprus Criminal Code was based on a Model which was prepared for the British dependencies and also on the Indian Penal Code;44)

      2.  

    2. the Ottoman Commercial Code45) which was repealed and replaced by stages by the Partnership Law 1928, the Bills of Exchange Law 1928 and the Bankruptcy Law 1930. In connection with this repeal the Companies (Limited Liability) Law 1922 should be borne in mind;

      3.  

    3. the Ottoman Civil Code (Mejelle) which "is a collection in the form of code of those principales of the Sheri Law to be applied by the Nizam Courts to what we may term ordinary civil rights and obligations".46)
 

The Mejelle was also gradually repealed and replaced by stages.

In 1930 the Contract Law 1930 was enacted the purpose of which was to bring in a comprehensive from and on an up-to-date lines the principales of English law relating to contacts in substitution of the Ottoman Civil Code. That Law was based on the Indian Contract Act 1872 as codified up to 1908 and the Zanjibar Contract Decree 1917 as revised in 1922.47)

 

By the Civil Wrongs Law 1933 it was intended to enact a complete Code of civil wrongs.48) Actually Cyprus is the only country in the commonwealth in which there exists a Code of civil wrongs.49)

The remaining articles of the Mejelle were repealed by other legislation.50)

    1. The Ottoman Land Code and related Ottoman Laws.51)

      2. They were repealed and replaced by the Immovable Property (Tenure, Registration and Valuation) Law, 1945.52)

    2. The Maritime Code, in so far as not in conflict with any provision of the Merchant Shipping Act 1894.53)
But apart from the aforementioned codes during the British administration certain other branches of the law have also been codified.

Reference has already been made to the Criminal Code, (now Cap. 154) the Law of Contracts (now Cap. 149) and the Law of Civil Wrong (now Cap. 148).

But the criminal procedure was also codified by the Criminal Procedure Law (now Cap. 155) and the sale of goods by Sale of Goods Law (Now Cap. 267).54)

Also the Ottoman mining legislation55) was codified by tge Mines and Quaries Law (now Cap. 270).

Until independence day four revision of the Cyprus legislation were made.56)

 

 

 

 

 

 

 

 

 

III
 
Revision and consolidation of Cyprus legislation necessary but no need for any codification

 

 

 

It appears that there would be no need for any codification of any branch of the Cyprus law and especially of the common law and rules of equity alreasy in force.

 

Unlike England most of the law has been codified in Cyprus. Thus with regard to contracts and torts it was codified by the Contracts Law (Cap. 149), the Interest Law (Cap. 150) and the Civil Wrongs Law. (Cap. 148). Regarding criminal law and criminal procedure we have the Criminal Code (Cap. 154) (as subsequently amended) and the Criminal Procedure Law (Cap. 155) (as subsequently amended). The mercantile law is now incorporated in the Bills of Change Law (Cap. 262) and the State of Goods Law (Cap. 267) whilst for bankruptcy we have the Bankruptcy Law (Cap. 5). As far as the law of evidence is concerned though the rules of evidence applicable in England are intorduced to Cyprus nevertheless by the Evidence Law (Cap. 9) for certain questions peculiar to Cyprus provision is made.

 

It would be, therefore, futile to embark upon a codification and law reform of the coomon law and the doctrines of equity at the time when the same work is done in England by the Law Commissioners.

 

Regarding immovable property there exists a complete set of legislation especially the Immovable Property (Tenure, Registration and Valuation) Law (Cap. 218) and the Immovable Property (Transfer and Mortgage) Law 1965, dealing with matters relating to land.

 

But there is a branch of the law which not only needs codification but also development and reform and that is the family law.

 

Unfortunately, however, the constitutional position in Cyprus is such that no such work can be undertaken.

 

Under our Constitution any question of personal status57) falls within the competence of the Communal Chamber concerned.58)

 

Regarding the Turkish Cypriots their family was codified by the Turkish Family (Marriage and Divorce) Law (Cap. 339)59) as procedurally by the Turkish Family Courts Law (Cap. 338).

 

With regard, however, to the Greek-Orthodox, the Armenians, the Latins and the Maronites the law regulating their family relation is the law of their respective Church.60)

 

It would have been desirable to have this law reformed and codified but this cannot be done by the legislature of the Republic as by Article 11.1 and 3 of the Constitution it is precluded from in any way interfering with the internal affairs of the Church.

 

So the only thing which remains to be done is the continuation of the revision and translation of our legislation now in progress.

 

Care should be taken during such translation that any legal expressions used should not adequately convey the meaning of the original but should also fit in our legal system.

 

By the revision on the other hand the provisions of any absolote or unnecessary enactment shall be omitted and our legislation shall be brought up to date in such from as to include consisely and precisely any enactment in force. For this purpose it might be necessary to consolidate in one law or enactment various Laws or enactments in pari materia.61)

During the revision it may appear that certain Laws need further amenments so as to bring in line with present conditions and circumstances.62) For instance our Criminal Code (Cap. 154 as subsequently amended) will require amendment of the part dealing with stealing so as to bring it into line with it is now in force elsewhere (like the Theft Act 1968) or of its provisions relating to offences against the State, which could be adequate for Cyprus when a Colony but now quite out of place when Cyprus is an independent Republic.