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Our View: What qualities do civil servants pay have to be protected by constitution?

Attorney-general Costas Clerides

The state will appeal against the decision of the administrative court that ruled the pay cuts imposed on civil servants in 2012 as unconstitutional. Attorney-general Costas Clerides explained to the party leaders at Monday’s national council meeting that he believed there was a good chance of winning the appeal explaining that no lawyer would “advise filing an appeal if there were no chances.” He did however add a note of caution, saying “predictions on difficult matters of a constitutional nature, European law, etc cannot be easily made.”

Perhaps he should have also added, even though professional ethics did not permit him to do so, that it was difficult to predict how the supreme court judges would interpret the constitution and especially Article 23 which protects “movable and immovable property.” It is this court that ruled state pensions were “movable property” and therefore protected by constitution. Surely, what is defined as movable property are government bonds, company shares, bank deposits none of which were protected by the constitution during the 2013 bailout. What qualities do pensions and wages of civil servants have that led judges to rule them as property?

This is the million-dollar question that has not yet been answered. Speaking after Monday’s meeting, Clerides said the appeal “referred to issues regarding the correct interpretation and implementation of the constitution as it is, and we should not talk about the amendment of the constitution at present.” There had been suggestions from government quarters about amending the constitution, but this would not resolve the current problem which could cost the taxpayer, according to some estimates, more than a billion euro; it would ensure against similar cases being brought in the future.

It is to be hoped that the attorney-general’s office makes a better case of the appeal. As some experienced lawyers pointed out, the state should have used the law of necessity to defend the government’s decision to cut wages and pensions. The law of necessity has been used to argue countless cases since the 1960s when the Turkish Cypriots withdrew from the Republic. Could the state not have argued that the law of necessity – in this case for saving the state from bankruptcy – allowed the pay and pension cuts? It has been used in the past to win cases of much less importance.

We can only express the hope the attorney-general’s office would give the appeal a better shot than it did the case before the administrative court. Perhaps Clerides should consider seeking outside legal help as his office has lost too many cases when pitted against experienced and successful lawyers. This is a case the state, literally, cannot afford to lose.

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