Widespread allegations of corruption in high places made auditor-general popular at the expense of attorney-general
In a unanimous and trenchant judgment, the Supreme Constitutional Court of Cyprus sitting as a discrete Council in an application to dismiss the auditor-general for misconduct decided on Wednesday that he had indeed engaged in misconduct towards the attorney-general and dismissed him with immediate effect.
Earlier in the case, the court held on a preliminary point that the attorney-general had a free-standing right as custodian of the public interest to apply for the dismissal of the auditor-general owing to his alleged misconduct towards the attorney-general himself. Although the court held that it was concerned with misconduct towards the office, not the person of the attorney-general, the fact is that he was not instructed to make the application as the lawyer of the executive, legislative or the judicial arms of the state.
The court found the auditor-general’s treatment of the attorney-general as conduct unbecoming – anarmosti simperifora – his office as an independent officer of the Republic. Misconduct in the English version of the constitution should be read in the narrow sense of ‘conduct unbecoming’ because it is the Greek version of the constitution that is authentic and binding. ‘Conduct unbecoming’ is an old-fashioned expression from British and American military law to do with ‘scandalous behaviour unbecoming an officer and a gentleman.’
The Greek anarmosti simperifora is spot on in terms of the bad behaviour envisaged because it preserves more accurately both the independence of the judiciary and the decorum expected of judges and the way they conduct themselves – mostly but not entirely – in their private lives.
Misconduct in the narrow sense usually arises in matters of lifestyle. If a judge is frequently seen drunk in a public place or is sexually promiscuous in public, or fraternises with known criminals he can be dismissed for misconduct. A few years ago, a judge in England was forced to resign because he went sailing with a friend who was smuggling duty-free cigarettes; more recently another judge was dismissed for groping his usher.
The difficulty in this case was whether the attorney-general could bring an action for the removal of the auditor-general for systematically undermining him professionally. The court found the auditor-general’s attitude and conduct towards the attorney-general was highly disrespectful of the standing of the office of the attorney-general as the head of the government’s legal service and was conduct unbecoming his high office.
As for the auditor-general’s popularity, the court held it was irrelevant to its assessment of his conduct. The court rejected the argument that in determining whether the auditor-general had engaged in misconduct, evidence that his conduct had popular support was relevant toshow it could not be stigmatised as misconduct. The court decided that under the constitution the auditor-general’s conduct, which was well documented, was a matter exclusively for the court’s assessment irrespective of the popularity of his behaviour.
The case raises an important point of constitutional law about the independence of independent officers of the Republic given that their security of tenure is constitutionally the same as High Court judges – both can only be removed by the Supreme Constitutional Court and only for misconduct or incapacity.
High Court judges cannot be removed for the way they decide cases as that would mean they are not independent, which is contrary to the constitution. Furthermore, no action could be brought against High Court judges for anything they say or do in their judicial capacity.
It is interesting to ponder if the attorney-general could have brought a comparable case against a High Court judge instead of the auditor-general if a High Court judge were systematically undermining him – it is not unknown for judges to undermine counsel in court.
As no action could be brought for the dismissal of a High Court judge for anything he says or does in his judicial capacity, it looks as though the attorney-general could only have brought an action for the dismissal of a High Court judge if he was disrespectful towards him extrajudicially – not in a case before him and not in a judgment.
The auditor-general’s functions as supervisor of public expenditure are set out in the constitution and it is only in respect of misconduct that does not impinge on the independence with which he performs those functions that makes him liable for dismissal. Disrespectfully encroaching on the territory of the attorney-general’s role was the main thrust of the case against him, which was well documented and well outside his powers and functions as auditor-general. The court held that the auditor-general’s behaviour was so egregious it crossed the line into misconduct. But was it overzealousness or hubris or both that led him to disrespect the attorney-general in a turf war between them about corruption in public life?
Standing back and considering the tragedy of Odysseas Michaelides’ time as auditor-general, it looks as though it was both overzealousness and hubris that caused his downfall – his nemesis if you prefer.    Â
But it was also as a result of an institutional clash between the two independent offices of the Republic in a climate of widespread allegations of corruption in high places which made the auditor-general popular and populist with the public at the expense of the attorney-general.
The court held that the auditor-general disregarded and was contemptuous of the central role of the office of the attorney-general as the government’s lawyer and public prosecutor. The decision to prosecute or not is not an easy one: there is an evidential threshold and a public interest threshold and both must favour prosecution. There are often competing public interests in play which involve difficult judgment calls. The auditor-general arrogated to himself the role of anti-corruption Czar that inevitably undermined the role of the attorney-general.
