Desde Nueva Jersey, EEUU.
Distributed by The Cuban Center - El Centro Cubano - http://www.cubancenter.org
July 14th, 2001
CASTRO'S CONSTITUTIONAL LAW AND THE CHANGES NEEDED TO RESTORE THE RULE OF LAW, Part 1 by Alberto Luzarraga
The subject matter of this paper and a proper scholarly approach require that we ask an "a priori" question. Do we have in today's Cuba a body of Constitutional Law that at the very least can provide some foundation for building and effecting change? The answer is a categorical negative. The reason lies in the structure and objectives of the Cuban Constitution in force.
The present Constitution of 1976, as amended in 1992, is designed to serve a unipersonal style of government, supported by a single party, that has exclusive access to the political discourse. The Constitution was not the product of a Convention with delegates freely elected that represented different points of view, but the work of a commission designated by the Communist party. Its mandate was to concentrate and preserve power and not to restrain it.
It followed the model of the Stalinist Constitution of 1936. The project was referred to the "organizations of the masses" for comment. Nothing of substance was changed. The Constitution was then approved by the Congress of the Communist Party, followed by a yes or no referendum wherein by a vote of 97.3 per cent it was approved. The process of course did not include alternatives and the sheer size of the approval vote (probably a world record) renders it suspect. It must certainly constitute an unparalleled record of assent to a constitutional document, but then the 1992 amendment was approved by the Popular Assembly by unanimity and in just three days.
Given its origin, of necessity, the model engendered concentration of power, and favored punishment for deviation from the established norm. Article 62 of the 1976 Constitution states it quite clearly: "None of the liberties granted to the citizens can be exercised against what is established in the Constitution and the laws, nor against the existence and purposes of the socialist state....and the decision.....to construct socialism and communism. The infraction of this principle is punishable." (emphasis added).
As we can see there is an official orthodoxy that takes a quasi religious tone.
Article 3 declares: "All the citizens have the right to engage in combat though all possible means, including armed struggle, against anybody that attempts to bring down the political, social or economic regime established by this Constitution". Deviant political behavior and belief is considered not only unpatriotic but it is also a constitutionally censored form of conduct thereby paving the way for the criminalization of this conduct. With such constitutional support, it is not surprising to see crimes as those created by the Cuban Penal Code.1
Art. 73 of the Penal Code defines the "state of dangerousness for antisocial conduct". Result: you can be sent to an asylum or work camp for up to 4 years until you "conform" your conduct.
Art. 103 creates the crime of dissemination of enemy propaganda which it defines as "instigating acts against social order or the socialist state" or "the dissemination of news that may cause alarm or malcontent amongst the population." Penalty: 1 to 8 years or up to 15 if the crime resulted from the use of massive media.
Art. 206, following the Constitutional dictate, creates a brand new crime: "abuse of religious liberty" which takes place by "opposing religious convictions to the objectives of education." Penalty: from 3 months to one year.
Art. 208 punishes illicit association with 3 months to 1 year. All associations or meetings not previously authorized are illegal.
Art. 216 punishes the attempt to exit the country without a permit with 1 to 3 years.
Art. 204 punishes the defamation, denigration or belittling of the political organizations of the country with three months to a year.
Art. 207.1 defines the felony of "association to commit a crime", and to complete the picture,
Art. 202 punishes the "instigation to commit a crime." In practice both articles are utilized to penalize the mere discussion of any of the conducts described above. What about due process? It is only notable by its absence. Art 58 of the Constitution refers all protections to the specific "laws" which as we will demonstrate, are notoriously abusive.
Under Art. 105 of today's Criminal Procedure Code, the indictment is issued by the state security and the accused is defenseless until the trial begins and only at this time can a formal defense begin. Further the Constitutional Amendment of 1992 eliminated "habeas corpus" as a Constitutional right. To complete the picture it should be noted that by Art. 111 of the Criminal Procedure Code, the agents of the Ministry of the Interior, (State Security) are designated auxiliaries of the Judicial Power as well as the heads of the block committees in charge of revolutionary vigilance.2
As a contrast Art. 29 of the 1940 Constitution, replaced by the present one, granted "habeas corpus" within 24 hours to all prisoners and mandated the dismissal of any judge or magistrate that would not grant it. Under the Criminal Procedure Code in existence before the present one, the accused, upon being served with a bill of indictment (issued by an investigating magistrate), had a right to counsel and to propose or impugn evidence before the trial opened.
Throughout its 137 articles, the Constitutional text reflects the inherent contradiction of talking about liberty but predetermining what kind of political liberty is acceptable. Thus, Articles 41 to 66 include a long list of rights but frame their exercise in such a way that they become inoperable. The crux of the problem lies in the monopoly granted to the state for a number of societal needs, such as education, unions, the labor movement and the access and control of all the communications media.
A good example is Art. 53 of the 1976 Constitution that grants citizens freedom of speech, but in "agreement with the ends of the socialist society", going on to explain that the "material conditions for the exercise of this right are given by the fact that the press, radio, television, cinema and other media are the property of the state and cannot be owned privately, thus insuring their use in the interest of society" (emphasis added). In like manner, Art. 54 states the rights of association, reunion and demonstration are exercised by the workers through the "organizations for the masses", which have at their disposal the necessary means to achieve these objectives.
Workers rights, of the kind traditionally granted by modern constitutions, are also absent. There is no protection for minimum salary or job stability, and some basic principles long established in labor law are notoriously absent as for example: a.. the principle that contracts should be interpreted in the form most favorable to the worker, b.. the principle that labor rights cannot be renounced, c.. the principle that there must exist mandatory limits to potentially unhealthy or dangerous work with the attendant security measures.
Most notably the right to form unions and to strike is conspicuously absent. Why? A Cuban Labor Law expert, professor Córdova explains: "For the drafters to include minimum guarantees against a State that supposedly incarnates the interests of the workers would be contrary to the interest of said workers. But it is clear, continues Córdova, "that in any labor relationship there are those who command and those who obey, and this in itself carries the possibility of abuses and arbitrary acts....particularly if the superior has total power".3 For Córdova, the regime really had no option but to suppress the right to unionize as it wished to continue to implement the practice of "voluntary work" which was and is rendered gratis.
Discrimination is prohibited by Art. 42 of the constitution but in a telling omission discrimination due to political beliefs is excluded. In a system subject to Judicial Review of enacted laws, in order to determine if they are unconstitutional, perhaps there would be some cause of action based on this article as it also prohibits "any other discrimination that hurts human dignity."
This point is useful to frame the issue of the political organization of the state and to whether there are remedies to protect the citizen against arbitrary use of power. There is no judicial review of the constitutionality of laws. Art. 75 c) confers that function to the "Asamblea Nacional del Poder Popular" i.e. the communist "parliament". But it is an inoperative attribution. Since the parliament enacts or ratifies laws it would act in the simultaneous capacity of judge and interested party. This unacceptable result is only found in totalitarian legislation's that pretend to be pure and to represent the sole legitimate and acceptable doctrine. Naturally with such presumption it follows logically that only they can judge if they made a mistake.
Judiciary? Art. 122 of the Constitution states that the courts and judges are independent. But as usual, a contradiction follows. According to Articles 75 and 121 of the Constitution, Judges (and particularly Supreme Court Magistrates) are subordinated to and given their jobs by the "parliament" who can remove them at will. The "parliament" results from one party, one voice, no opposition elections. Furthermore, according to Art. 90 h) the Council of State is given the incredible power of being able to issue instructions to the courts. The judicial power sees its independence further diminished by the lack of incompatibility of functions. According to Arts. 71 & 125 of the Ley de Organización del Poder Judicial, (Judicial Organization Law) Cuba is perhaps one of the few countries in the world where a person is allowed to be a judge and also act as a member of the "Popular Assembly" or parliament. A s if this were not enough, the professional character and impartiality of court panels is also in question. According to Art. 124 of the Constitution, Cuba incorporates permanent lay judges (i.e. without legal training) to the panels and these persons are chosen amongst the party faithful. Art. 121 gives the Supreme Court the right to issue obligatory instructions (sic) to the lower courts in order "to establish a uniform judicial practice in the interpretation and application of the law." Note that these are not purely administrative issues but instructions on how cases must be decided, thereby preempting the judicial function.
It is amply clear that the Judicial Power only functions as an appendage of the Executive and Legislative Power. To complete the description: The legislative power is also an appendix of the Executive the only real power in Cuba. It would appear otherwise from the constitutional text since Art. 69 states that "The National Assembly of the Popular Power is the supreme power of the State. It represents and expresses the sovereign will of all the people". The Assembly elects from within its members the Council of State including a President, a First Vice President, 5 Vice-Presidents, one Secretary and 23 other members. Naturally it has not failed to elect Castro and his brother for the past 42 years as President and First Vice President.
This Legislature meets for a very short period of time (three or four days) twice a year to approve laws, with very little debate. During the rest of the year the Council of State legislates by decree. It may also change laws voted by the Assembly. The original drafting of the Constitution Art. 73 (ch) gave the Assembly the power to revoke in all or part the laws dictated by the council of State. But this power disappeared with the 1992 amendment.4 In this way the Council became the legislative organ, and completed its monopoly of power already reinforced by the power granted to it by Art. 90 h) of the Constitution which allows it to give instructions to the courts.5
By now it should be sufficiently demonstrated that under the present Constitution it is not possible to create a system based on individual liberties. The procedure that governed its creation and approval, affects its validity, but more importantly we repeat: it is a document designed to increase power and not to curb it. And a constitution exists precisely to curb power. Separation of powers does not exist. Some of the provisions are patently contradictory. So much so, that one can reasonably conclude that declarations such as that the judges and tribunals are independent are placed for rhetorical effect only. The same can be said about the articles on due process, personal liberties etc.
The Constitution of 1976 as amended in 1992 must be discarded because its totalitarian tone and style has conditioned the existing legislation. The Code of the Infancy and the Youth provides a revealing example of how far the present Constitution has allowed State to regulate the lives and aspirations of the people.6 The constitution states in Art 39 a ) and c) that students must be formed according to Marxist and communist ideas. The code was dictated to implement that principle. The preface of the Code states that "it is necessary to regulate the different aspects of the life of the new generation, its duties and rights...."
Art.1 states the purpose of the legislation: "(to) regulate the participation of children and all persons less than thirty years old in the construction of a the new society. according to the objective of forming a communist personality in the new generation." Art. 2 states that the Code is part of the socialist legality and thus establishes duties and obligations. There are several, including military service (no conscientious objection is allowed) and notably according to Art. 64, one of the most important duties of the youth, is to render "voluntary, non remunerated work". Of no less importance is the regulation of access to superior education. Art. 23 sets as one of the admittance criteria "political attitude and social conduct"; and Art. 26 refers to the need of a "correct integral attitude". And for good measure the cumulative dossier is issued to each child upon entrance to grade school. The political attitude will be recorded therein during the school life of the child and will form the basis higher schooling opportunities later on.
As is common in totalitarian regimes its legislation has never been subject to any type of judicial review. A search of constitutional practice in Latin America reveals that there have been no constitutional cases in Cuba. It is the only country with this dubious distinction. (see http://www.uc3m.es/uc3m/inst/MGP/JCI/02-cuba.htm).
We have proved what we said in the opening paragraph: that there is no way that this constitution can be amended to anybody's satisfaction. It is the centerpiece of a carefully constructed system of totalitarian laws. Liberty demands that the founding stone of totalitarianism be removed.
1 Codigo Penal, Ley #62 of 29 December 1962. (Publicaciones del Ministerio de Justicia, La Habana 1990)
2 Ley de Procedimiento Penal, Ley #5 of 13 August 1977. Publicación Oficial del Ministerio de Justicia (Editorial Orbe, La Habana, 1979)
3 Córdova Efrén, Clase Trabajadora y Movimiento Sindical en Cuba, Center for Labor Research and International Studies of Florida International University. (Ediciones Universal Miami 1995) Vol. II. pages 264 and 265.
4 Alvarez Tabío Fernando, Comentarios a la Constitución Socialista de Cuba. (La Habana. Editorial de Ciencias Sociales, 1985) page 269. Tabío, one of the drafters of the constitution of 1976 explains how the text required that the ultimate legislative power be vested in the Assembly. This juridical "slip" of the drafters, was an event that the regime could not accept and the power was taken away when the amendment was passed, thus making clear where the real legislative power lies.
5 Vide Supra 6 Código de la Niñez y de la Juventud. Ley #16 of 28 June 1978 (Publicaciones Del Ministerio de Justicia, La Habana 1978).
*On matters Cuban there is too much propaganda and rhetoric and not enough facts. Castro's laws are his best prosecutor. When considering changes in Cuba we must be realistic and judge on the basis of facts.
This essay was originally presented in English in an academic context. ( NYU school of LAW) I have made small adaptations and elected to leave it in that language because I believe that Cubans wherever they are must be not only be informed but must be able to inform others. This requires that they be able to furnish American friends and people of other nationalities facts that they can absorb and ponder.
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