Turkish Cypriot Proposals for the Solution of the Cyprus Problem

relations with the EEC, the Commonwealth, the Socialist bloc and the non-aligned countries and is in a position to attract the capital and the know-how of foreign investors. Most of the foreign aid, in terms of grants, credits and goods provided for the island, goes to the Greek Cypriot Communtiy. In addition, the economic blockade imposed by the Greek Cypriots, as a deliberate instrument of policy, with the unwitting backing of the international community has further aggravated the economic plight of the Turkish Cypriot Community. These discrepancies and inequalities in economic and social conditions, coupled with the mistrust resulting from the vivid memories of the past, are perhaps the most important difficulties on the way to establishing a federation in Cyprus.

3. Legal Difficulties (a) The federal principle implies, almost by definition, an equality of partner states. This is the main guarantee under which different political entities agree to enter intci a political partnership. Yet, this principle of equality carries the risk of creating deadlocks in the effective operation of the governmental machinery established to meet the administrative needs of the people at federal or federated levels.

In decision-making, this difficulty is normally overcome by subjecting the will of a smaller number of states to the will of the greater number of states, regardless of their size and population (e.g.: simple majority of states, two-thirds of states, nine out of thirteen, etc.).

The difficulty in Cyprus is that the number of states to be federated is only two and the principle of equality of partners is therefore an absolute necessity imposed both by the principles of federalism and the duality of partners.

(b) In this given situation, the only way to reduce the risk of deadlock in the effective operation of the governmental machinery established to meet the administrative needs of the people is to reduce the number of functions to be carried out by the federal organs where this risk exists. Therefore, there is an evident logical contradiction in the acceptance of the federal principle, on the one hand, and the insistence on creating a strong federal central administration, on the other hand, in a "bi-communal" situation. Since it is clearly desirable for each equal partner to be able to rim as much of its own affairs as possible without the blocking of the other, there is an obvious advantage in retaining essentially common functions as federal and leaving the residual powers to the federated states.

C. General Observations on the Turkish Cypriot Constitutional Proposals for the Establishment of a Federal Republic of Cyprus. The Turkish Cypriot constitutional proposals for the establishment in Cyprus of an independent, sovereign, bi-communal, bi-zonal and non-aligned Federal Republic take into account the background to the Cyprus problem and the events which have taken place in Cyprus, particularly the period of violence and bloodshed during the past quarter of a century, and are designed to find a remedy for the past difficulties and to remove the obstacles in the way of a peaceful co-existence of the two national Communities, side by side, in a spirit of mutual trust and co-operation. 1. Basic Guidelines (a) The constitutional proposals take into account the four guidelines which were agreed at the summit meeting of the 12th February, 1977, between President Denktas and the late Archbishop Makarios, when the two leaders declared that they were "seeking an independent, nonaligned, bi-communal, Federal Republic". The following is the full text of the above-mentioned tour guidelines: "1. We are seeking an independent, nonaligned, bicommunal, Federal Republic.

2. The territory under the administration of each community should be discussed in the light of economic viability or productivity and land ownership.

3. Questions of principles like freedom of movement, freedom of settlement, the right of property and other specific matters, are open for discussion taking into consideration the fundamental basis of a hi-communal federal system and certain practical difficulties which may arise for the Turkish Cypriot Community.

4. The powers and functions of the central Federal Government will be such as to safeguard the unity of the country having regard to the bi-communal character of the State."

(b) As in d above, there have existed in Cyprus since 1963, and, in the absence of a settlement, there still continue to exist, two separate and distinct Administrations representing the two national Communities, the co-founders of the Republic, respectively. This fact has been recognised by the three States guaranteeing the independence of the Republic of Cyprus, namely, Turkey, Greece and Britain, by their Declaration at Geneva on the 30th July, 1974, which stated that: "The Ministers noted the existence in practice in the Republic of Cyprus of two autonomous administrations, that of the Greek Cypriot Community and that of the Turkish Cypriot Community. Without any prejudice to the conclusions to be drawn from this situation the Ministers agreed to consider at their next meeting the problems raised by their existence."

In fact the inter-communal character of the conflict since 1955 and the bi-communality of the Republic which has reigned since 1960 is the underlying reality and foundation of all UN Resolutions since 1963.

The two separate, distinct and equal Administrations which exist in Cyprus today, exercise, in their respective areas, the full powers of the Republic. It follows therefore that in the establishment of the Federation, the Turkish Cypriot side is not starting off with an existing legitimate central government exercising full powers and functions over the whole Republic. The question is not which of these powers and functions should be devolved to the member states of the Federation, but, on the contrary, which of the powers and functions now being exercised by the already existing separate and distinct Administrations should be transmitted to the central government.

(c) It is also an indisputable fact that when the powers and functions of a strong central government have been in the hands of a Greek Cypriot dominated government, the Turkish Cypriots have been treated as second class citizens and their human rights have been gravely and unj ustly violated. It is, therefore, imperative that in order to give the proposed new Federation a chance to survive, the constitutional arrangements must be such as to ensure that the tragic events of 1963-1974 should not, and cannot, be repeated again. This logical, realistic and basic precautionary element has also been borne in mind in the preparation of the Turkish Cypriot constitutional proposals.

The Turkish Cypriot side sincerely wishes to unite the existing separate Administrations in a Federation, whereby the two Communities can co-exist, side by side, and co-operate with each other in a spirit of mutual trust and confidence.

The Turkish Cypriot proposals endeavour to achieve a political compromise between the conflicting interests and demands of the political units which comprise the Federation. Above all, they aim to strike a balance, as in all democratic forms of government, between the rights and liberties of individuals, on the one hand, and the necessities of the governmental structure created for their administrative needs, on the othe'r hand. The essence of the approach being the protection of the individual, the relationship between the founding communities is so regulated as to prevent the individual from becoming the victim of any settlement based on the supremacy of one community. The quality of the Communities, which is the salient feature ot the Turkish Cypriot proposals, is based on no other consideration than that of protecting the individual from the consequences of an uneven inter-communal situation.

2. Fundamental Prerequisites Any workable solution for the constitutional order in Cyprus should, therefore, meet the following conditions: (a) Deterrent guarantees against the recurrence of the past bloodshed, in order to secure, for each individual, the freedom from fear; (b) Effective guarantees and machinery for the protection of human rights and liberties of all the individuals; (c) The protection of each individual from political, economic and social discrimination and oppression resulting from membership of one community; (d) The right of the members of each community to benefit equally from the opportunities, potentialities and protection of a state; (e) The right of the members of each community to economic and social development and to prosperity on the territory of their own community; (f) The protection of each community, as such, against the domination of the other community; (g) The right of each community to preserve and develop its cultural, economic and commercial connections with the whole family of nations and particularly with its own motherland.

The ultimate aim of any democratic system of government being to ensure the safety of its citizens and to protect their inalienable rights of life, liberty and the pursuit of happiness, any attempt for a constitutional solution for Cyprus can only be meaningful if it takes into account all the above considerations together and establishes a harmony between them. It is therefore wrong to say, for instance, that the freedom of movement, freedom of residence, the right to property and free exercise of profession are essential for the acceptance of any solution by one side if the immediate and unconditional exercise of the same freedoms and rights are detrimental to the other fundamental prerequisites which are as essential and vital, if not more so, for the other side.

That is why the four guidelines, which were agreed at the summit meeting of the 12th February, 1977, between President Denktas and the late Archbishop Makarios, while referring to "questions of principles like freedom of movement, freedom of settlement, the right of property and other specific matters" also stated that any discussion of these should take into consideration "the fundamental basis of a bicommunal federal system and certain practical difficulties which may ariS for the Turkish Cypriot Community". The four guidelines also envisage the taking into account of "economic viability Or productivity and land ownership" when discussing territory. The merit of any federal solution lies exactly in the variety of the ways in which different "fundamentals" can be combined and compromised. It is equally wrong to insist upon the recognition of certain abstract principles and rules of government when such principles and rules lead to situations which create more deadlock and conflict rather than being about practical and acceptable solutions for the welfare of the individual, from whichever community he may be.

3. Basis of the Federal Structure The equality of the founding communities, however important, is not by itself a sufficient guarantee for the protection of the individual. That is why the Turkish Cypriot proposals put peat emphasis on the judicial protection of the fundamental rights and liberties. Not only are these enumerated in an even more detailed way than in the 1960 Constitution, but a federal system of judicial review is established as a guarantee against their infringement by federal legislation. Moreover, the Federated States shall bear the domestic and international responsibility resulting from the violations of fundamental rights and liberties within their respective jurisdictions.

In a federative system, the protection of the individual in any community shall also be envisaged in terms of his entitlement to benefit equally from the opportunities, potentialities and protection of a state which should be capable of providing him with essential services without interference from other communities who are partners in the union. This is especially important in a federation of only two communities who, by virtue of the federal principle, have come together on a basis of equality. In a situation of mutual mistrust where each community has reservations about the goodwill of the other wise, to start with the creation of a federal system with strong central powers covering a wide range of common functions is in fact asking for frequent tensions and interminable deadlocks. These would result in the deprivation of the individuals from the benefits of governmental activities even in the stronger and more self-confident community, because such activities may continuously be subject to disruption or interference from the other partner.

Thus, the constitutional proposals of the Turkish Cypriot side have been made having regard to the existing realities and in the light of past experience. It is therefore proposed that the two existing separate Administrations should give up to the Federal Government only those basic

powers and functions which are considered necessary and feasible for the purpose of maintaining common services and without security risks to the life and property of the inhabitants of the member states. If, in the course of time it is proved, by the conduct of all concerned that mutual trust and confidence can be built upon the initial links existing between the Federal 6overnment and the two member States, then it is to be hoped that, with the growth of such confidence and with the elimination of mistrust and suspicion, it will be possible to strengthen such links by building upon them by the gradual transfer of additional powers and functions to the Federal Government. It is the sincere belief of the Turkish Cypriot side that the proposed Federation can only work and hope to survive, in the present circumstances, by starting cautiously and then build up and strengthen the existing links and structures with the growth of mutual confidence.

In fact, in the case of some federations, the partners have set off on the federative venture even more cautiously and instead of starting off with a federal structure at the beginning they have started with a confederation. Two typical examples of this natural trend may be found in the case of the United States of America and the Swiss Federation which evolved from a confederal structure into a federation.

These two examples clearly show ttiat when there is no confidence between the parties concerned — and this confidence is not something which can be imposed but must develop naturally and progressively between the partners — less power is given to the central authority. However, as confidence between the parties grows, the powers of the central or federal government are increased by stages. This principle of "growth of federation by evolution" Is one of the basic principles of the Turkish Cypriot constitutional proposals.

Another example which proves the same point from a different angle is the case of Yugoslavia: the strong control that the Federal Government had over the Federated Republics, a characteristic feature of the 1946 Constitution, proved inadequate and subsequent Constitutions and amendments gave much greater rights and powers to the Federated Republics which provided a much sounder basis for the edification of the successful federative experience in Yugoslavia.

In the light of its own experience and the experiences of others, the Turkish Cypriot side, in its desire to commence the new partnership venture with a federation which will eventually evolve into a stronger partnership, cannot ignore the tragic events of the past and risk the breaking down of the federation by not proceeding cautiously or by imposing too much of a strain on the central government.

4. The Federal Structure For the fulfilment of federal functions enumerated in detail in the constitutional proposals as to their content and progressive implementation, the Turkish Cypriot side proposed the following structure: (a) The Federal Executive: For reasons of equality, lack of confidence between the two Communities and the bitter experiences of the past which have been explained above, the joint direction of the Federal Executive by the two Presidents of the Federated States has been considered to be the fundamental basis of the smooth functioning of the executive organ. Undoubtedly the understanding, cooperation, collaboration and progressive creation of mutual trust and confidence between the two Communities has been shown to be best secured when the consensus of their leaders has been possible. The continuous joint participation of the two leaders on the basis of equality in the basic decision-making process for federal functions will greatly enhance the chances of obtaining the desired consensus.

Any other conception or approach that would place the two leaders on an unequal footing or force them to perform completely separate functions for federal matters would undermine the type of federation proposed and tend to create further polarisation between the two Communities.

It should be noted that equal representation of two numerically unequal communities in a joint federal executive is not a completely novel solution. Czechoslovakia gave the example, where the Prime Ministers of the Czech and Slovak Federated States took part in the federal executive as Vice-Premiers on an equal basis, although their communities represented approximately 65% and 29% respectively of the total population.

However, even in the case of such dual executive, there will be certain ceremonial and formal functions for which a single representation of the Federal State by the President of the Federal Republic is necessitated by the circumstances, in which case the Turkish Cypriot proposals foresee a two-yearly rotation between the two Presidents of the Federated States. A distinction should be made, however, between the proposal made here and the concept of alternation of a strong presidential office. The alternation of purely ceremonial and formal functions would not entail any substantial inconvenience in the functioning of the federal machinery.

(b) Federal Legislation: The type of federation proposed by the Turkish Cypriot side envisages separate Legislative Assemblies in the respective Federated States which shall deal with most of the legislative matters concerning life on the island. These Assemblies, being the elected representative organs of the two Communities, will also be enrolled in federal legislation covering common specific functions essential for a federal system of government, which are:

— Foreign Affairs:

— External Defence; — Banking, Foreign Exchange and Monetary Affairs;

— Federal Budget;

— Customs Duties and Tariffs; — External Communications; — Federal Health Services; — Standards of Weights and Measures, Patents, Trade Marks, Copyrights and Meteorological Services;

— Tourism and Information.

In case of conflict in matters of federal legislation between the two Legislative Assemblies, provision has been made for the creation of a Federal Assembly composed of twenty members, ten from each Legislative Assembly. The system is so devised as to prevent the domination of one Community by the other and to eliminate the possibility of a complete deadlock. In addition to recourse to the Federal Constitutional Court on grounds of constitutionality, provision is also made, as a last resort, for submission to a referendum to be held separately in each Federated State.

(c) The Federal Constitutional Court: As pointed out above, in view of the importance attached to the protection of the rights and liberties of the individual in each Community, the Federal Constitutional Court is a basic feature of the Turkish Cypriot proposals. It shall be composed of six judges in equal numbers from each Federated State. The Federal Constitutional Court, in addition to its jurisdiction in constitutional matters, shall also act as the highest administrative court in federal matters.

5. Other Basic Features of the Constitutional Proposals. The Turkish Cypriot side feels it imperative to include in the Federal Constitution provisions on the following matters:

(a) Reference to the 1960 Treaty of Guaran' tee and the Treaty of Alliance, as amended, thus giving them constitutional force;

(b) Entrenchment of the basic articles guaranteeing the independence, sovereignty, nonalignment of the bi-communal and bi-zonal Federal Republic and the unity of the country; (c) Reservations on amendments for a period of seven years in order to give a fair chance to the new constitutional order; (d) Establishment of a machinery for progressive implementation of federal functions on economic and social matters in accordance with the concept of "growth of federation by evolution";

(e) Claims arising out of rights of ownership acquired prior to the Constitution shall be settled' together with all other claims between the two Communities in the form of debts, dues and compensation, by agreement between the parties concerned;

(f) Rotation of certain basic federal functions between the members of the two Communities in accordance with the principle of equality and in order to reduce the risks of deadlock.