Origin of the constitution

I. On the I6th August, 1960, the republic of Cyprus was established as an "independent and sovereing republic" and its constitutions came into force .

That constitution was mainly based on the Agreement reached at Zurich on the Iith february, 1959, between the Greek and the Turkish Prime Ministers, whereby the basic structure of the Republic of Cyprus was laid down and two draft Treaties, the Treaty of Guarantee and the treatry of Alliance between the Repub;lic of Cyprus, Greece and Turkey were formulated, as later implemented by the Agreement reached in London on the 19th february, 1959, between the Governments of the United Kingdom, Greece and Turkey and the leaders of the Greek and Turkish Community of Cyprus . Under the London Agreement certain measures were agreed for the new arrangements in Cyprus one of which was the immediate establishment of a Joint Commission in Cyprus composed of one representative each nominated by the Government of Greece and the Government of Turkey together with a legal adviser nominated by the Foreign Ministers of Greece and Turkey for the purpose of drafting a constitution for the independent Republic of Cyprus .

The legal adviser so appointed was Professor marcel Bridel, of the University of Lausanne, assisted by Mr. louis Bagi, a lawyer from Lausanne .


Drafts of human rights

2. The Joint Constitutional Commission commenced officially its work on the 6th May, 1959, at a plenary session at which Professor Bridel was welcomed by the heads of the delegations. There were submitted two drafts for the constitution of Cyprus on behalf of the Greek and the Turkish delegations respectively and the matter was then referred to a preparatory sub-committee.

Both drafts contained a part relating to human rights. The Greek drafts was mainly based on the constitution of Greece which originated from the constitution of Turkey of the roth january 1945 and was rather following the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe made at Rome on the 4th November 1950. The human rights provided in such drafts were of the "classic type" or of the "old catalogue" and were referring to political and civil rights.


Social and economic rights

3. It was Professor Bridel who, by his proposed draft for the articles of the constitution on fundamental human rights, submitted to the preparatory sub-committee, raised the question of the inclusion of certain social or economic rights in the proposed constitution of Cyprus . The preparatory sub-committee at a series of meetings considered the draft of the part of the constitution relating to human rights and produced its first draft on the roth August 1959. That part pogether with the other parts of the constitution were considered at successive meetings of the preparatory sub-committee held in Cyprus and later at Lausanne, where the preparatory sub-committee adjourned its meetings, from the 18th january to 10th February, 1960. At those meetings the final draft relating to human rights was settled, the only question remaining outstanding being that relating to the right to marriage. That right, after protracted discussions of the delegations was finally settled and the present Article 22 of the constitution took its final from.


4. The draft prepared by the preparatory sub-committee in English was adopted by the Joint Constitutional Commission at its plenary session of the 6th April 1960 over which Professor Bridel presided and was then translated into Greek and Turkish, the two official languages of the Republic under the Zurich Agreement. The Greek and Turkish text thus prepared was declared to be the relevant text of the constitution of the Republic of Cyprus under the Republic of Cyprus Order-in-Council 1960 and was initialled by initialled by representations of the British, Greek and Turkish Governments and the two leaders of the Greek and Turkish Community in Cyprus in the early hours of the 16th August, 1960, when it was put into force .

Part II of the constitution is entitled "Fundamental Right and Liberties" and as already stated apart from the political and civil rights deals also with social, economic and cultural rights.

No right can pre-exists the state

1. Though by nature the man., the abstract human being stripped of all his relations, has been endowed at his birth by his creator with the gife to live in freedom, to enjoy his belongings and to perpetuate his life in the person of his descendants, neverhteless we cannot speak about rights until after the formation of the society and the emergence of the state. A right, irrespective of whether it is a power of the will or a protected interest or a power of the will capable of protecting an interest , is always granted by law and presupposes the existence of the state .


Nature and origin of human rights

2. But, as rightly pointed out, the law relating to human rights arises out of the nature of man and it is "rational, universal and fundamental as the expression of the highest reason of man".

It is not my purpose to embark upon a detailed examination of the historical evolution of the law of human rights but the first constitutional documents whereby human rights were declared and recognized (i.e. the Manga Carta of 1215, the Petition of Rights of 1628 and the Bill of Rights of 1688 in England, the Virginaia Bill of Rights of 1776 the first constitution of Massachusetts of 1780 and the Declaration of Independence of 4th July 1776 in the United States of America and the French Declaration of 1789, 1793 and 1795) influenced by the political philosophy of the eighteenth century and the then prevailing liberal doctrines were aiming at the protection of the individual against oppression by the political authority. During a period of absolute monarchy the emerging new commercial, industrial and cultural middle class was feeling oppressed and exploited by the state represented by the ruling upper privileged class of the nobles and the clergy. It was against the state that protection was sought and for this reason political and civil rights were recognized to the individual to whom a sphere of free activity was left (liberte-autonomie) within the limits of which the state should either refrain from interfering in any way or was allowed to interfere very sparingly on certain exceptional occasions provided by law . According to this view liberty and authority are two opposing conception and liberty is a right belonging to the individual as against the state which he could resist by preventing any interference with his rights (liberte-resistance) . The duties of the state towards the individual consist in its abstention (nec facere) from any action which may affect his individual rights.




Transformation of conception of human rights

3. With the changed industrial, social technological and cultural conditions in the twentieth century and the development of new methods of production, consumption, credit and commercial relations, it was found that the classical indiovidual civil and political rights could not satisfy the needs of the man, in the modern society. What was the use of having the inviolability of his home protected, if he could not have a decent home to live in or of guaranteeing the freedom of expressing his thoughts if having to work since childhood had not the means nor the time to receive instruction and education enabling him to formulate proprly his thoughts or of securiting the freedom of movement ij he had no other place to go to?

For this reason, in the twentieth century the conception of human rights has undergone a radical transformation in three main respects.


(a) their domain has been expanded so as to include apart from the classic human civil and political rights, economic and social rights as well .

The propose of social rights is not only to protect the individual vis-a-vis the state but also to assist him to develpo effectively his personality by the creation of conditions and the discharge of services enabling him to overcome oppression from other social forces.

In his message to the Congress of the 6th january, 1941, President Roosevet in connection with the aims of the war formulated the four freedoms "freedom of speech, freedom of religion, freedom from want and freedom fear" . The last two freedoms disclose conciselt the aim of social rights as tendong to liberate the man from all the economic oppressions and to secure him from isolation, insecurity and economic dependence .

The social rights are not opposed to the classic political and civil rights but on the contrary they expand and implement them by affording to the individual the means and opportunity to exercise and enjoy such rights;


(b) Their juridical conception has been changed from a right to claim an abstention by state to a right to require some positive action. In the epigramatic observation of Professor Burdeau:


Tandis que les droits individuels, au sens traditionnel, sont des pouvoirs d'interdire, les droits sociaux sont des pouvoirs d'exiger .


In the daily life various from of constraints, pressures and abuses emanate not only from the state but also from various other quarters such as big enterprises in the factory, the workshop, the office and other large groups and must be guarded against. The individual invokes then the protection of the state which by a positive action has to intervene for the safeguard of his rights not only on the public law ashere but also in connection with private law relations . Most of such rights should be exercised for the public benefit, the individual having a duty towards the society and the individual rights being transformed to social functions .


(c) whilst the classic human right belonged to the individual and its enforcement rested with him, the state authorising and protecting its exercise, the social and economic rights belong rather to a class and become collective rights belonging to all the members of the class . In this way there is a scialisation de la liberte, the individual right becoming a recognised social function organised for the benefit of the community .


Constitutional provisions relating to social rights

Although for the first time a provision was made for certain social rights in the French Declaration of the 24th June 1793 nevertheless chronologically it was the constitution of Weimar of the 11th August 1919 which incorporated these new trends in a systematic way and opened the series of new declarations of human rights followed by other European constitutions in the period between the two world wars .

Most of the post-war constitutions contain declarations of human and social rights . They contain also provision about the duties of the citizen (mainly relating to taxing obligations, obligation to serve in certain services without any remuneration, obligation of partents to maintain their children and the disposal of one's natural and intellectual capacities for the benefit of the society) and other social provisions referring to the economic life, the property, the work, the family and the cultural life .


Internationalisation of human rights

4. The human rights, however, have not remained within the province of the domestic jurisdiction of the states but have not entered the international plane and have been internationalised. Although international law is a law regulating the rights and duties of the states inter se and the individual human being is not directly a subject of international law, nevertheless even in the past the protection of some of his fundamental rights on humanitarian grounds was invoked in state practice as a ground for intervention and now with the creation of new international organizations in the words of de la Pradelle: le moment est venu, pour l'homme ecartant l'Etat, de monter avec des institutions nouvelles au premier pang de la vie internationale .

The internationalisation of human rights started after the end of the First World War with the establishment of the League of Nations, when the rigidity of the conception of sovereignty was relaxed and the need for the protection of minorities contributed to bringing forward the international protection of human rights . Certain individual freedoms and social rights of the workmen and generally of employed people were recognized and put under the protection of international organizations such as the International Labour Organizations and the International Labour Office .

After the Secound World War the internationalisation of human rights was extended . The important steps towards this direction were taken by the Charter of the United Nations, the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms with its Protocols of the Council of Europe and the European Social Charter .

Recently on the 16th December 1966 the general Assembly of the United Nations adopted unanimously the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and by 66 votes to 2 with 38 abstentions the Optional Protocol to the International Covenant on Civil and Political Rights . All those documents have been opened for signature since the 19th December, 1966.

The Republic of Cyprus was amongst the six first countries (that is to say Costa Rica, Cyprus, Honduras, Israel, Jamaica and Philippines) which signed the aforesaid documents.








Constitution aims at welfare state

1. The constitution of the Republic of Cyprus by a series of Articles guarantees to the individual certain social and economic rights which are to be exercised within the framework of public interest and common good.

Without adhering to a particular economic or social system a fair balance is maintained between the individualistic liberal theories of the laisser-faire state of the last century and the social trends of the twentieth century. Thous though the private initiative and free economy are declared and adhered to nevertheless the private entreprise is cheked by state intervention when public interest and benefit so require. The functions and the role of the state contemplated by the constitution are those of the "welfare state" .


Right to decent existence and social security

2. Article 9 of the Constitution provides that:

Every person has the right to a decent existence and to social security. A law shall provide for the protection of the workers, assistance to the poor and for a system of social insurance .


By this Article two rights are guaranteed - a right to decent existence and a right to social security.

What is a "decent existence" in not provided in the Article but from its whole tenor it appears that the state has an obligation to create ans maintain such conditions of living of wotk and of health as to enable every person to enjoy a standard of living adequate for the health and well-being of himself and his family.

The right to social security on the other hand tends to protect the individual in the event of unemployment, sickness, disability, widonwhood, old age, or other lack of livelihood in circumstances bevond his control.

The secound limb of the Article, whereby means of securing and enforcing the right guaranteed under its firts limb are provided, may be used in aid of interpretation of the letter. The state has a constitutional duty to enact a law for the protection of the workers, assistance to the poor and for a system of a social insurance.

A question has arisen as to whether the provisions, of that Article relate only to a legislative programme containing directives to the legislature or whether they are substantive constitutional law creating obligations for the legislature and rtights for the individual .

From the wording of this Article coupled with the provisions of Article 35 under which "the legislative, executive and juridical authorities of the Republic shall be bound to secure, within the limits of their respective competence, the efficient provisions of this Part" it follows that Article 9 contains substantive constitutional rules and that there exists a command and not merely a directive to the legislature .

Actually laws for the protection of the workers were in existence on the date of coming into force of the constitution and were saved by its Article 188 . Certain laws protecting the workers were enacted after the establishment of the Republic .

After the establishment of the Republic labour legislation for the protection of the wotkers was enacted and the Republic acceded to many international labour conventions which having been approved by law and published in the official gazette of the Republic have, under Article 169 of the constitution, superior force to any municipal law.

There were also certain labour conventions which being applicable to the Colony of Cyprus on independence day continue to apply in the Republic under the provisions of Article 8 of the Treaty of Establishment (the inheritance Clause).

With regard to social insurance the Social Insutance law, 1964 was enacted.


Freedom to work and of trade and business

3. Every person has the right to preactice any profession or to carry any trade or business . No person shall be required to perform forced or compulsory labour.

In the laissez faire state the principle of free enterprise was prevailing and the individual was at liberty to choose his own profession or exercise any business without being bound to belong to any corporation or to have franchise or grant from government .

But the exercise of such could not be absolute as the state has a power to regulate it for the protection of the rights of others or of the community at large. The existence of the state itself and requirements of good government presuppose such regulation.

The powere of regulation is expressly and restrictively provided in the constitution of Cyprus and is not to be inferred from the general police power of the state as elsewhere and consists in prescribing formalities, conditions or restrictions for the exercise of this right.

Such formalities, conditions or restrictions should however, be provided by law and should relate regarding a profession execlusively to the qualifications usually required for the exercise of such profession or necessary only in the interests of the security of the Republic or the constitutional order or the public safety or the public or the public health or the public morals or for the protection of the rights and liberties guaranteed by the constitution to any person or in the public interest.

Even before the establishment of the Republic the state was intervening in the economic sphere and regulating certain commercial and other business activities in the public interest. Such intervention has been expanded since the establisment of the Republic on grounds of public interest.

A five years economic plan was made in respect of the years 1962 to 1966 which was essentially a public investment programme. It was implemented by the Development Budget of each year to which it related and was carried out. A secound five year plan is in the course of preparation. Such planification is not inconsistent with the free economy contemplated by the constitution.

As an exception to the freedoms of work, to the freedoms of work, trade and business guaranteed under Article 25 of the constitution a law may provide if it is in the public interest, that certain enterprises of the nature of an essential public service or relating to the exploitation of sources of energy or other natural resources shall be carried out exclusively by the Republic or a municipal corporation or by a public corporate body created for the purpose by such law and administered under the control of the Republic and having a capital which may be derived from public and private funds or from either such source only.

By this constitutional provision power is given to the state to create a state monopoly subject to the following conditions:

(a) such monopoly should be created by law;

(b) in the public interest;

(c) only with regard to enterprises constituting an essential public service or relating to the exploitation of sources of energy or other natural resources and

(d) be carries out exclusively by the state or a municipal corporation or a public corporation created ad hoc by such law.

The public corporation is a new type of public institution created for the purposes of "overcoming the antithesis of government and business ... It is clothed with the power of government but possessed of the flexibvility and initiative of private enterprise".

Such corporation should be administered under the control of the Republic.

The creation of the state monopoly contemplated by Article 25 (3) of the constitution is not a from of nationalisation as no individual property (in any from) is transferred to the state. No question of compensation, therefore, arises. Nevertheless by the proviso to paragraph 3 or Article 23 it is provided that "where the enterprise was carried out by any person, other than a municipal corporation or a public corporate body, the installations used for such enterprise shall at the request of such person be acquired on payment of a just price by the public corporate body concerned.


Freedom to contract

4. Closely connected with the right to work and the freedom of trade and business and one of the means for their effectuation is the freedom to contract, guaranteed under Article 26 of the constitution which reads as follows:

Every person has the right to enter freely into any contract subject to such conditions, limitations or restrictions as are laid down by the general principles of the law of contract. A ;law shall provide for the prevention of exploitation bu persons who are commanding economic power.

It is to be observed that what is protected under this Article is the right to enter into a contract and not the obligations arising aou of an agreement resulting from an exercise of that right as under Articel 1 Section 10 paragraph 1 of the constitution of the United States. Rights arising out of a contract are not fundamental rights guaranteed by the constitution of Cyprus. It is competent, therefore for the state by legislation to alter the terms and condituions of a contract in the public interest. Thus a law for the protection of distressed tenants was not found to be unconstitutional. Also reference may be made inter alia to the Interest law (Cap 150) fixing the maximum rate of interest at 9% to the Ursury (Framers) Law (Cap 101); the Rent (Control) Law (Cap 86); the rent Control (Business Premises) Law 1961, the Commodities and Services (Regulations and Control) Law, 1962; the Agricultural Farmers Relief Law, 1962.

But even in the United State where not only the right to contract is guaranteed but any interderence with the obligations of a contract by state legislation is precluded is was found that the states retain a protective power of control exercised in a manner otherwise appropriate in the regulation of business.

But even the exercise of the right to contract under the constitution of Cyprus is not absolute but it is "subject to such conditions, limitations or restriction as are laid down by the general principles of the law of contract". The existence of a contract is determined by such principles. It is essential, therefore, that the parties to the contract should have the necessary legal capacity, that there should be a consensus ad idem and that the contract should not be void for any reason whatsoever including that of illegality.

The freedom to contract implies that the parties are standing on an equal basis because as observed by Friedmann "the concept of freedom and equality in contract are interchangeable". For this puropose and in order to restore equality between the parties, which owing to prevailing economic conditions may have been disturbed, the constitution provides that the exploitation by persons who are commanding economic power should be prevented by law. As observed by Chief Justice Hughes in West Coast Hostel v. Parrish (81 Law ed. p. 701):

The explotation of a class of workers who are in an unequal position with respect to bargaining power and are thus relativey defenceless against the denial of a living wage is not only detrimental to their health and wellbeing but costs a direct burden for their support upon the community. That these workers lose on wages the taxpayers are called upon to pay.

In this respect reference may by made to the aforementiones labour legislation and also to the recently enacted Annual Leaves with Payment Law 1967 and the Termination of Employment Law 1967.

It is observed that the freedom to contract is guaranted to the individual against interference by the state and where any limitation or restriction is made not in the interest of the state or any public body but for the purpose of regulation of civil law rights any such interference is not unconstitutional.

Finally by paragraph 2 of Article 26 it is provided that a law may provide for collective labout contracts of obligatory fulfilment by employers and workers with adequate protection of the rights of any pertson whether or not represented at the conclusion of such contract.

By that provision the legal nature of a collective agreement is determined. A collective agreement creates norms binding the employers and workmen who become parties to individual contracts of employment amde thereunder or in consequence of such agreement although not represented at its conclusion.

Collective bargaining in the modern society aims establishing equality in the bargaining power of the parties and marks the exercise of public law function through private groups and in private law matters.


Freedom to from and join trade unions

5. Apart from the general freedom of association the constitution of Cyprus, like some other constitutions, guarantees specifically the freedom of forming and joining a trede union (liberte syndicale). Even before the establishment of the Republic trade unions were recognised by law and were functioning in Cyprus.

Under the law of Cyprus a trade union is a combination whether temporary or permanent of the relations between workmen and employers or between workmen and workmen, or between employers and employers and includes a federation of trade unions the members of which are engaged in the same or similar trade or calling. Theconstitutional guarantee extends also to any federation or confederation or trade unions.

The constitution guarantees both the positive freedom of every person to from and join a trade union of this choice and the negative freedom of every person not to join or to continue to be a member of a trade union. This is in line with the prevailing trend in Europe where "compulsory trade unionism" is not favoured.

It folows that any provision in any collective labour agreement wherby the "general organization clause" to the effect that the employer shall employ workers belonging to a trade union or the "restricted organization clause" whereby the employer shall employ workersbelonging to the trade union with which the collective labour agreement was made in void as contrary to the freedom guarabteed under the constitution.

Furthermore by section 50 of the Trade Unions Law 1965 it is expressly provided that it shall not be lawful to make the employment of a worlman subject to the condition that he shall not join or shall relinquish trade union membership or to cause the dismissal or otherwise prejudice a workmen by reason of trade union membership or because of participation in trade union activities outside working hours. Of course the freedom of the employer to engage a workman of his choice, irrespective of whether such workman is or is not a member of trade union, remains unrestricted.


Right to strike

6. The constitution of Cyprus recognizes the right to strike. Article 27 reads as follows:

The right to strike is recognized and its exercise may be regulated by law for the purposes of safeguarding the security of the Republic or the constitutional order or the public order or the public safety or the maintenance of supplies and services essential to the life of the inhabitants or the protection of the rights and liberties guaranteed by the constitution to any person.

It follows thet the constitutional recognition of strikes as a fundamental right precludes the legislature from undermining it by way of regulation of its exercise. As Professor Burdeau says: reglementer n'est pas supprimer. A law cannot render punishable the exercise of such right nor hinder it either directly or indirectly by providing prejudicial consequences of a civil nature against the strikers. The regulation by law should be made for the reasons which are restrictively provided in the aforecited Article 27 and which cannot be expanded but shall be interpreted strictly (Article 33).

There is not definition of "strike" but that expression should be given the meaning accepted by the courts as a simultaneous, concerted and collective cessation of work for the purpose of supporting claims relating to condituons of work. The aim of a strike presupposes the relation of employer and employee and its aim should have an economic character. So it seems that political strikes are not guaranteed by the constitution.

The general recognition of the right to strike under paragragh 1 of Article 27 of the constitution is qualified, however, with respect to members of the armed forces and the police and the public service.

Paragraph 2 reads as follows:

The members of the armed forces, of the police and of the gendarmerie shall not have the right to strike. A law may extend such prohibition to the members of the public service.

The strike of members of the armed forces and the police aiming at compelling the state to accept more favourable conditions of service is considered as inconsistent with their status and the nature of the service which should continue to be exercised unhampered for the attainment of state purposes. Though similar considerations may apply to the members of the public service nevertheless the constitutional provision is an enabling one. A law was recently enacted about the public service but contains no prohibition of strikes by public officers.

There is an apparent inconsistency between the above paragraph 2 of Articel 27 of the constitution and paragraph 2 of Article 8 of the United Nations which, as already stated, the Republic signed though not yet approved by a law.

Paragraph 2 of Article 8 of the Covenant reads as follows:

This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the state.

The constitution denies the existence of such to members of the armed forces and the police whilst the Covenant presupposes the existence of such right and confers only power of imposing lawful restrictions on the exercise of the right.

But as pointed out by Basu "restriction does not exclude the idea of prohibition everything being a question of degree". As observed also by the Privy Council "regulation may clearly take the from of denying certain activities to persons who by age or circumstances are unfit to perform them ... Here again a question of fact and degree is involved".

So long as the strike means the simultaneous cessation of work and presupposes the existence of relationship between employer and employee and of "a trade dispute" it can hardly be alleged that it may be resorted to by members of the armed forces of the state.

So in spite of an apparent inconsistency between the two texts in substance no differentiation exists.


Constitutional remedies

1. Mere declaration of economic and social rights without any provision for their enforcement would be purposeless. For this reason the constitution of Cyprus not only defines the rights in clear language but provides also affective remedies for their enforcement.

The legislative executive remedies and judicial authorities of the Republic shall be bound to secure within the limits of their respective competence the efficient application of the provisions relating to fundamental rights and liberties.

Where a positive legislative action is required to be taken the legislature has a constitutional duty to take such and enact the law required. On the other hand if the provision of any law is in any way contrsry to or inconsistent with the constitutional provisions such law may, on the question being by the Suprem Court as unconstitutional when it become inapplicable to such proceeding. Any such decision of the Supreme Court is binding on all courts, orgens, authorities and persons in the Republic.

If the fundamental rights of a person are violated by any administrative act or omission that person amy apply to the administrative authority for redress under Article 29 of the constitution and if he does not get satisfaction he may have recourse to the Supreme Court for the annulment of such act or omission as being contrary to the provisions of the constitution or of any law or is made in excess or abuse of powers and the Supreme Court may declare such act as null and void and no effect whatsoever or declare the such omission ought not to have been made and that whatever has been omitted should have been performed. Furthermore the person aggrieved may resort to the Supreme Court for any of the Prerogative orders of mandamus or quo warranto.

If a person is aggrieved by a judicial act he may appeal to the Supreme Court and further he may apply for an order of certiorari or prohibition.





International protection

2. The Republic of Cyprus has already signed the International Covenant on Economic, Social and Cultural Rights of the United nations and the European Social Charter of the Council of Europe. It is hoped that very soon they will be approved by a Law and thus have the force of law, superior to any municipal law (Article 169 (3) of the constitution).

The protection of the social and economic rights will thus now be brought on the international sphere. And though there is no provision for a recourse to an international body in connection with any grievance organizations will be interesed in the way Cyprus is protecting such rights and informed about the situation.