A first reaction to this document must be that for a nation of 556,000, this was a very elaborate and very rigid constitution. It runs to 199 articles and of these the 48 “basic” ones were to remain unalterable in perpetuity.
The remainder could in practice only be altered by mutual agreement of the two communities. Drafted with the help of a Swiss constitutional adviser, the constitution was of the consociational variety which gives the preservation of the ethnic balance higher priority than majority rule.
Moreover the constitution, thus heavily freighted, was screwed into the international system by the accompanying treaties. Under the Treaty of Guarantee with Britain, Greece and Turkey, the Republic of Cyprus undertakes to uphold its own independence and its own con-stitution; not to participate in any political or economic union with any state whatsoever; and to prohibit any domestic action likely to promote union with another state or partition. In return Britain, Greece and Turkey recognize and guarantee not only the independence, integrity and security of Cyprus but also “the state of affairs established by the Basic Articles of its Constitution.” They also will ban activity favoring “Enosis or Taksim” (union or division). In the event of a breach of the provisions of the treaty, the three guarantors “will consult together” about “measures necessary to ensure observance.” Then follows the most critical wording of the treaty, currently cited to support the Tur-kish position. If, says, Article IV, concerted action should not be possi-ble, “each of the three guaranteeing powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by this present Treaty.”
The Treaty of Alliance, which was between Cyprus, Greece and Turkey, thus not including Britain, was intended to reinforce the ra-tionale of the whole series of arrangements: that Greco-Turkish friend-ship was in the last resort worth more than the strict arithmetic and practical convenience of Cypriot politics. A committee of the three for-eign ministers was “the supreme political body” of the alliance. Under its authority there should be a tripartite headquarters established on the island, with military contingents of 950 Greeks and 650 Turks to provide for the defense of the new republic and to train the new Cypriot army
The extent to which this complex of arrangements, redolent of old-fashioned diplomacy, was legally valid in the light of the United Nations Charter has been the subject of much debate among international lawyers. The question was whether a constitution so rigid and unalterable was compatible with the equal sovereignty which was rec-ognized in the charter and whether its unchangeable nature could va-lidly be enforced under a treaty which permitted any one of the signa-tories individually to take action.
It is a complex argument which has not been resolved.
Certainly Professor Ernst Forsthoff, the German who was the first president of the Supreme Constitutional Court, was to say [in 1963]: “I consider it wrong to regard Cyprus under the present agreement and constitution as an independent state.” The guarantees, he added, “include also a right of actual intervention — there can be no guarantee without the right of intervention.” Clearly the signatories, it may be presumed, thought they were signing valid documents. Archbishop Makarios subsequently claimed that the settlement was imposed on him by force majeure and that he did not feel morally bound by it.
Archbishop Makarios was elected the first president of Cyprus by the Greek voters in December 1959 and Dr. Fazil Küçük the first vice president by the Turks. The archbishop had critics both on the right from supporters of Grivas — who left the island for a hero’s welcome in Athens and the rank of a retired general — and on the left because the settlement had been brought under the aegis of NATO. He moved swiftly to consolidate his position — by appointing EOKA people to key posi-tions, most notably Polycarpos Yorgadjis as minister of the interior, and by launching a vigorous foreign policy of friendship with the non-aligned powers which served to disarm the potential opposition of the communists in AKEL who were given five unopposed members in the first House. But the same process of satisfying the political needs of the Greek Cypriot community straightaway led to a series of conflicts with the Turks, in which the feelings of the two communities about the constitution were made plain.
The Greek Cypriots’ feeling was that the constitutional privileges accorded the Turkish community were preposterous; the Turkish Cy-priots’ that these were the bare minimum, to be exercised to the last ounce.
The disputes concerned:
(a) The 70:30 ratio in the public service: The Turkish Cypriots required that the proportion should be attained within five months of independence as had in fact been stipulated in a pre-independence agreement between the president-elect and the vice president-elect.
The Greek Cypriots in the Public Service Commission argued that they could not draw from 18 percent of the population which was poorly qualified suitable candidates to fill 30 percent of the jobs overnight. After three years the Greek Cypriots published figures to show that real progress had been made in all grades towards the objective. But the subject rankled and aroused resentment in both communities. At the end of 1963 there were 2,000 appeals outstanding in the Supreme Constitutional Court about public appointments.