The problems the auditor-general is facing reminded me of a conversation I had a few years ago with the late Rustem Tatar Cyprus’ first auditor-general 1960-63, and father of the Turkish Cypriot leader Ersin Tatar, in which he was very complimentary about president Makarios.
Tatar senior was being hounded by the press unfairly and Makarios came out in support of his beleaguered auditor-general and publicly pledged his full trust in him rather than leave him twist in the wind.
Makarios’ kindness meant so much to Rustem Tatar it was the first thing he told me when we met some 50 years later and goes to show that Makarios’ personal kindness marked the man beyond the politician.
The present action brought by the attorney-general of the Republic of Cyprus (RoC) to dismiss the auditor-general for misconduct raises two fundamental points on the interface of law and politics. Who watches over those in a position of trust? And who else apart from the president of RoC has standing to bring an action to dismiss independent officers and senior judges?
The question of who watches over the conduct of the auditor-general was determined by the Council of Judges of the Supreme Constitutional Court earlier this month. It held that whereas only the Council has the power to dismiss for misconduct, the attorney-general was entitled to bring an action for dismissal of his own motion in his capacity as custodian of the public interest.
The consequence of the Council’s decision is that the attorney-general has a free-standing right to bring an action without instructions from the president or the House of Representatives to remove any senior judge and any independent officer of the Republic without political accountability.
In the US it is the Congress comprising the House of Representatives and the Senate that has the power to impeach judges and senior officers of the executive branch.
What usually happens is special counsel is appointed to decide if there is evidence of wrongdoing to place before the House of Representatives that votes whether to impeach or not. The case is then brought before the Senate that sits in judgement, although their decision is often more political than judicial.
The position is different in the RoC. High ranking officers in the state such as the president, senior judges and the independent officers of the republic may be dismissed for misconduct, but the procedure is more judicial than political.
There is no need to appoint a special prosecutor to impeach the president because constitution says his prosecution for offences of dishonesty or moral turpitude is brought by the attorney-general with the leave of the president of the High Court.
Only if the president is to be prosecuted for treason is the process political. That has to be launched by resolution of the House of Representatives taken by three fourths majority to instruct the attorney-general to prosecute.
What about the independent officers of the Republic? They are the attorney-general, the auditor-general and the governor of the Central Bank. They may be dismissed on “like grounds and in a like manner” as judges of the High Court, namely: misconduct. So when considering their dismissal one goes to the provisions in the constitution dealing with the dismissal of High Court judges.
Cyprus’ constitution gives exclusive competence to dismiss High Court judges for misconduct to the Council of Judges of the Supreme Constitutional Court for the removal of High Court judges – a kind of judges’ employment tribunal.
Misconduct is not defined except that no action may be brought against a judge for acts done or words spoken in their judicial capacity – an important safeguard of the independence of the judiciary as well as the independence of the officers of the Republic. There is no problem with most criminal offences involving moral turpitude but misconduct that is not criminal is nebulous wrongdoing – I can only think of sexist or racist remarks uttered by a senior judge in public extra-judicially.
The proceedings before the council have to be of a judicial nature. That means the judge must be informed of the facts alleged to constitute misconduct and he has the right to be heard and call witnesses and cross examine witnesses against him.
The question whether the attorney-general could bring an action against the auditor-general is ultimately one of standing. By coincidence the US Supreme Court ruled last Thursday on the constitutional importance of standing. It held that it is a “bedrock constitutional requirement the Supreme Court has applied to all manner of important disputes”. Standing is “built on a single basic idea – the idea of separation of powers”.
The Supreme Court held that there is no such thing as doctor’s standing as custodian of medical practice to bring an action against the Food and Drugs Administration (FDA) to compel it to withdraw an abortion pill from the US market.
The argument that “if these plaintiffs lack standing to sue, no one would have standing, is not a reason to find standing. Rather, some issues may be left to the political and democratic processes.” The US constitution did not provide for anyone “to oversee the conduct of the National Government by means of lawsuits”.
The constitution of Cyprus made no provision about who has standing to bring an action for dismissal of High Court judges and the independent officers of the Republic. Unfortunately for the auditor-general, however, the gap in the law was filled by case law in which the attorney-general had successfully brought an action of his own motion without instructions from anyone with political accountability.
The case continues on whether the auditor-general behaved with excessive zeal as some kind of latter-day Inspector Javier in Les Miserables and whether it amounted to misconduct.
Alper Ali Riza is a king’s counsel in the UK and a retired part time judge
