By Alper Ali Riza
THERE is no such beast as the law of necessity in constitutional law. What the common law and human rights law recognise is the narrow doctrine of necessity as circumscribed by the European Convention of Human Rights.
According to a leader article in the Cyprus Mail on Thursday last week the Supreme Court invoked the doctrine of necessity to justify hearing an appeal by the full court of 13 judges that a pay cut to civil servants’ salaries and pensions was unconstitutional, even though many of the judges who will hear the case have a direct financial interest in the outcome.
The attorney-general had asked those with a direct financial interest to recuse themselves and they refused on the grounds that to do so would render the Court inquorate.
Apparently, the Supreme Court invoked the law of necessity to rule that the full court could hear the appeal even if this would be in violation of the most fundamental principle of justice that requires a trial before an independent and impartial tribunal.
The legally dubious doctrine of state necessity has a political dimension in Cyprus. It was imported from Pakistan after the power-sharing constitutional arrangements broke down in 1963. It was refined and exported back to Pakistan in the case of Attorney-General of Cyprus v Mustafa Ibrahim, and used there to justify the detention of the elected prime minister under emergency powers following a military takeover in Pakistan in 1977 in the case of Bhutto v Chief of Army Staff.
It has considerable purchase in Cyprus as it was expedient to suspend the power-sharing arrangements under the 1960 constitution. The Turkish Cypriot vice president, ministers, members of the House of Representatives and civil servants were unable or unwilling to take part in the governance of Cyprus in 1963 so the government carried on regardless, not least because it was recognised as the legitimate government internationally.
The result has been that the doctrine of necessity is practiced in Cyprus as if it were a natural state of affairs rather than a temporary emergency expedient. The problem confronting the executive arm of government now, however, is different. It is whether the judicial arm of the state can arrogate to itself the doctrine of state necessity to justify a composition of the court that is not impartial to decide an appeal that may ultimately cost taxpayers and the state an enormous amount of money.
This is very strange behaviour by the judges but strange or not the question is whether it is lawful. The best and easiest way to test its lawfulness – the acid test if you like – is to look to see if it is in accordance with the ECHR.
So the question is whether judges with a direct financial interest in the outcome of an appeal can sit in judgment of their own cause in the highest court in the land after being requested by the attorney-general to stand down?
The starting point is that under the ECHR and the constitution, in the determination of his rights and obligations, every person, in this case, every taxpayer represented by the AG, has the right to a fair hearing before an independent and impartial tribunal. It goes without saying that a tribunal composed of judges with a direct financial interest in the outcome cannot be impartial.
Under the ECHR the right to an independent and impartial tribunal can only be derogated from by states in time of war or other public emergency threatening the life of the nation, and then only to the extent strictly required by the exigencies of the situation.
So there is no way a Supreme Court of a state can invoke state necessity that compromises its independence and impartiality, except in time of war or other public emergency; obviously none exists in a case where the problem is that a quorum comprising the full court is mandatory under the constitution and a number of the judges have a direct financial interest in the outcome.
The issue is procedural and the court always has an inherent power to regulate its own procedure so as not to prejudice the proper administration of justice. So judges with such an interest have to recuse themselves in the interests of justice. Justice trumps all other considerations even if it means that the court would not be quorate.
If you think about it there is absolutely no reason so many judges are required to decide a point of law however complex. Moreover, necessity cuts both ways and I am not clear why necessity was not invoked the other way so as to enable the case to be heard by fewer judges in place of the full court. After all, what you need is quality: the president of the court, if he is not compromised, one judge with expertise in the field of law in play, and three wingers is all justice requires.
After all, you have the judgment of the administrative court at first instance through which the facts were filtered, the legal issues identified, and a reasoned decision given.
So the decision on appeal must be to a quorum of more judges than the administrative court but not as many as 13.
With every respect to the Supreme Court, a full court of 13 judges is embarrassingly surplus to requirements. As I say even if the constitution provides for a full quorum, another substantive part of the constitution provides for an independent, impartial and competent tribunal, and if the two provisions clash the interests of justice in an impartial tribunal must prevail.
It is normally on international fora that you find quorums of 10 or more judges and that is because a wide cross-section of judges from different countries is required to give the court efficacy and lend credence to its authority internationally. Those considerations do not apply to the Supreme Court of a small island-state with a population of under a million.
In the UK, 11 justices sat in the decision whether the government needed parliamentary approval to serve notice to leave the EU, two of whom were from Scotland and one from Northern Ireland; in normal cases, five judges suffice.
A quorum of nine judges constitutes the International Court of Justice and seven the US Supreme Court. The Grand Chamber of the Court of Justice of the EU has a quorum of 15 judges and that of the European Court of Human Rights 17. In cases of exceptional importance, the EU court can sit as the full court comprising 28 judges.
The law of necessity was misapplied by the judges of the Supreme Court and those with a direct financial interest should, in all conscience, recuse themselves as individuals even at the eleventh hour. It would do their judicial souls a world of good.
Alper Ali Riza is a queen’s counsel in the UK and a part-time judge