By Paris Spanos
Alper Ali Riza’s line of argument in his article ‘Turkish Cypriots of Nicosia have constitutional right to municipality’ (Cyprus Mail, October 4) is superficial and lacks a sound legal foundation, as he deliberately fails to address the fact that the individual in question was not elected as “mayor” in accordance with the very Constitution upon which Riza himself relies.
It is, of course, correct that the Constitution provides for a separate Turkish Cypriot municipality. However, anyone wishing to claim the title of “mayor” of the Turkish Cypriot municipality must have been elected in accordance with the Constitution and the laws of the Republic of Cyprus.
Since the individual concerned was not elected through the legally prescribed procedures, he is not entitled to describe himself as the mayor of the Turkish Cypriot municipality. Rather, he was elected as “mayor” pursuant to the purported “Constitution” of an unrecognised state. The institutions of such an entity do not enjoy international recognition as lawful institutions of a sovereign state.
Riza, once again advancing an argument that lacks proper legal substantiation, seeks to mislead those unfamiliar with international law. He states: “Non-recognition of a state does not necessarily entail non-recognition of every legal institution, act or consequence produced by the de facto state if it is for the benefit of the community.”
The jurisprudence of the European Court of Human Rights is clear in distinguishing between the recognition of certain acts performed by institutions operating within an unrecognised entity and the recognition of those institutions, or of the entity itself, as lawful. Recognition of a particular act does not, in itself, confer legal recognition upon the institution responsible for that act, still less upon the purported state.
This distinction arises from the practical necessity of acknowledging certain acts carried out in the ordinary course of community life, particularly where the rights and interests of individuals are concerned. For example, marriages solemnised in the occupied areas may be recognised for their legal effects. What is recognised in such circumstances is the act itself, not the legal legitimacy of the institutions through which it was performed.
Consequently, the individual concerned could adopt any number of alternative descriptions of his position, provided these accurately reflect the circumstances of his election. He could, for example, be described as the “mayor of Nicosia within the secessionist entity”. What he cannot legitimately claim, however, is the title of mayor of the Turkish Cypriot municipality as envisaged under the Constitution of the Republic of Cyprus.
Riza cannot selectively invoke the provisions of the Constitution while conveniently disregarding the fact that the individual he describes as “mayor” was not elected in accordance with those very provisions. Τo invoke an article of the Constitution as the foundation of an argument that someone has the right to hold a particular public office, while concealing the fact that the particular “official” did not acquire that position pursuant to the relevant article of the Constitution, is misleading and potentially deceptive.
In the absence of compliance with the constitutional provisions upon which he relies, Riza’s argument is legally untenable and ultimately devoid of a sound foundation.
Paris Spanos, is managing partner at Markos P. Spanos & Co. LLC