The Turkish Cypriot Legal System from a Historical ... - Ankara Barosu
The Turkish Cypriot Legal System from a Historical ... - Ankara Barosu The Turkish Cypriot Legal System from a Historical ... - Ankara Barosu
118 ankarabarrevıew 2010/1 actually a “law mosaic.” fundamentally based on common law, nevertheless adapted to the conditions and requirements of the country. 102 For this reason, the laws and regulations to be applied by the judicial bodies had to be re-defined in each era. Accordingly, this need has been perceived by the lawmakers of the TRNC and therefore the laws and the regulations to be applied by the TRNC judicial organization had to be defined in Article 38 of the Code of Courts. In this regard, the laws and regulations to be applied have been listed in order of priority as follows: a) The Constitution, b) The laws and regulations in force, unless they are infringing the Constitution, c) The General Principles of Law (judge made law) (“Ahkam-ı Umumiye”) and equity law (“nasfet hukuku”), on the condition that they are not infringing or not incompatible with the Constitution, d) The Pious Foundations Codex (Ahkamül Evkaf) and, e) The laws and regulations regarding maritime law, which were in force on 21 December 1963. Nevertheless, in our opinion some of the sources stated herein this list requires further explanation in particular. Obviously TRNC judicial bodies shall apply the laws and regulations in force, i.e. the codes, regulations and bylaws as the primary source, provided that they are not infringing the Constitution. However, due to the specific structure of the system, it is important to emphasize the time of the enforcement periods of the codes, regulations and bylaws once more. The temporary Article 4 of the Constitution of TRNC states that, all the codes and the consequent regulations and bylaws issued in compliance with these codes, which are not infringing the Constitution and which have been implemented by; 1. the British Colonial Administration until the RoC was established on the 16 August 1960, 2. the RoC until 21 December 1963, 3. the Turkish Community Assembly, 4. the Turkish Cypriot Provisionary Administration Assembly , 5. the Autonomous Turkish Cypriot Administration/Legislative Chamber 6. the Constituent Assembly of the Turkish Federative State of Cyprus, 7. the Parliament of Turkish Federative State of Cyprus 102 DAYIOĞLU, p. 73; NECATİGİL, KKTC Hukuk Sistemi, p. 141.
The TuRkish CypRioT legal sysTem fRom a hisToRiCal peRspeCTiVe 8. the Constituent Assembly of the Turkish Republic of Northern Cyprus , and 9. the Parliament of Turkish Republic of Northern Cyprus. shall be also be in force 103 . Another issue we must mention is that, what should be understood from the terms General Principles of Law (judge made law) (“Ahkam-ı Umumiye”) and equity law (“nasfet hukuku”). First of all we should note that there are some translation and spelling errors in this group of sources which may lead to misunderstandings. The first mistake is regarding to the term “ahkam-ı umumiye” (judge made law). This term is regulated in the Code of Civil Courts, 1960 as “Common Law.” Nevertheless, this term, taking its mistake from the Anglo-American law systems, being defined as “common law”, “traditional law” in today’s legal dictionaries, has somehow been drawn with the wording “ahkam-ı umumiye” (general principles) in the Code of Courts, 1976. However, “ahkam-ı umumiye” is as known, means general principles and this term has no connection with “Common Law”. The term “Common Law” as in the British Law, refers to a law system that has been developed by court decisions sourcing from traditions and customs and which can be adapted to the changing socio-economic conditions of the society 104 . This system which has been developed through court decisions in some certain areas is applicable in TRNC law system as a part of laws and regulations. This implementation in particular, creates an option of interpretation of the codes in compliance with the present conditions in some areas where the requirements of the day are not met and the current legislation is insufficient, on the basis of the “precedents”. With regards to the TRNC law system, it can be stated that only the law of contracts and torts is based on Common law 105 . Another issue, included in the laws and the regulations that should be considered is that what is meant by the rules of “equity law” (“nispet hukuku”). The term “nisfet” or “nesafet” which has been erroneously been drawn as “nasfet” in the Code of Courts, is also sourcing from British Law and in general terms it refers to “equity” or “restitution”. This term has been developed by the “Court of Chancery” in order to overcome inequities that take place during the implementations of Common Law and the exact meaning of it in the legal environment of Continental Europe is, judges’ right of ruling in accordance with “justice and equity” as well. The judges of TRNC have the same right and duty 106 . 103 NECATİGİL, Anayasa ve Yönetim Hukuku, p. 11. 104 NECATİGİL, Anayasa ve Yönetim Hukuku, p. 12; Dayıoğlu, p. 62. 105 NECATİGİL, Anayasa ve Yönetim Hukuku, p. 12. 106 NECATİGİL, Anayasa ve Yönetim Hukuku, pp. 12-13. 119
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118<br />
ankarabarrevıew 2010/1<br />
actually a “law mosaic.” fundamentally based on common law, nevertheless<br />
adapted to the conditions and requirements of the country. 102<br />
For this reason, the laws and regulations to be applied by the judicial<br />
bodies had to be re-defined in each era. Accordingly, this need has<br />
been perceived by the lawmakers of the TRNC and therefore the laws<br />
and the regulations to be applied by the TRNC judicial organization<br />
had to be defined in Article 38 of the Code of Courts. In this regard,<br />
the laws and regulations to be applied have been listed in order of<br />
priority as follows:<br />
a) <strong>The</strong> Constitution,<br />
b) <strong>The</strong> laws and regulations in force, unless they are infringing the<br />
Constitution,<br />
c) <strong>The</strong> General Principles of Law (judge made law) (“Ahkam-ı<br />
Umumiye”) and equity law (“nasfet hukuku”), on the condition that<br />
they are not infringing or not incompatible with the Constitution,<br />
d) <strong>The</strong> Pious Foundations Codex (Ahkamül Evkaf) and,<br />
e) <strong>The</strong> laws and regulations regarding maritime law, which were in<br />
force on 21 December 1963.<br />
Nevertheless, in our opinion some of the sources stated herein this<br />
list requires further explanation in particular.<br />
Obviously TRNC judicial bodies shall apply the laws and regulations<br />
in force, i.e. the codes, regulations and bylaws as the primary<br />
source, provided that they are not infringing the Constitution. However,<br />
due to the specific structure of the system, it is important to emphasize<br />
the time of the enforcement periods of the codes, regulations<br />
and bylaws once more. <strong>The</strong> temporary Article 4 of the Constitution of<br />
TRNC states that, all the codes and the consequent regulations and bylaws<br />
issued in compliance with these codes, which are not infringing<br />
the Constitution and which have been implemented by;<br />
1. the British Colonial Administration until the RoC was established<br />
on the 16 August 1960,<br />
2. the RoC until 21 December 1963,<br />
3. the <strong>Turkish</strong> Community Assembly,<br />
4. the <strong>Turkish</strong> <strong>Cypriot</strong> Provisionary Administration Assembly ,<br />
5. the Autonomous <strong>Turkish</strong> <strong>Cypriot</strong> Administration/Legislative<br />
Chamber<br />
6. the Constituent Assembly of the <strong>Turkish</strong> Federative State of Cyprus,<br />
7. the Parliament of <strong>Turkish</strong> Federative State of Cyprus<br />
102 DAYIOĞLU, p. 73; NECATİGİL, KKTC Hukuk Sistemi, p. 141.
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