Michel Fernández Pérez

Michel Fernández Pérez

Máster en Relaciones Internacionales y Lic. en Derecho. Ex profesor de Derecho de la Universidad de la Habana y Ex Asesor Jurídico. Investigador de temas relacionados con el derecho constitucional, los derechos humanos, el derecho internacional y el medio ambiente.

Lesbian, gay, bisexual, transsexual and intersex (LGBTI) rights activists participate in a march on Saturday, May 11, 2019, along the Paseo del Prado in Havana (Cuba). Photo: Ernesto Mastrascusa/EFE

The right to demonstrate in Cuba

Help us keep OnCuba alive A demonstration against police violence in Cuba was called for June 30, 2020, mainly through social networks. The public reason for this call was the death of young Cuban Hansel Ernesto Hernández Galiano who was shot by a policeman. This demonstration was not carried out because the Cuban authorities of the Ministry of the Interior detained or prevented possible protesters from leaving their homes. Some people also reported interruption of internet services for several hours. Despite the fact that the right to protest has legal recognition in Cuba, it has been carried out almost exclusively in cases where the protests are in the interest of the State and the latter provides all the resources for their realization. The exceptions to this rule have been certain religious activities, such as processions and the march against animal abuse on April 7, 2019, authorized by the Plaza de la Revolución municipal government. Parade for International Workers’ Day, May 1, 2019 in José Martí Revolution Square in Havana. Photo: Otmaro Rodríguez. Article 56 of the Cuban Constitution recognizes the rights to assembly, demonstration and association, for lawful and peaceful purposes, provided they are exercised with respect for public order...

Photo: Otmaro Rodríguez.

Legislative schedule in Cuba: a step forward and some doubts

The National Assembly of People’s Power (ANPP) approved on December 21, 2019 the legislative schedule for the current legislature. It provides for the approval of 39 laws and 31 decree-laws to thereby partially comply with the thirteenth transitional provision of the Constitution that stipulates that the ANPP approve, within one year, starting with the entry into force of the Constitution (April 10, 2019), a legislative schedule that complies with the elaboration of the laws its precepts establish. As stated in the agreement, this schedule also establishes the elaboration of other laws and decree-laws for the implementation of the Guidelines approved in the 7th Congress of the Communist Party of Cuba, and for compliance of the functions of the organs of the State. To carry out the constitutional precepts, 25 laws and 3 decree-laws must be prepared; to implement the Guidelines, 11 laws and 28 decree-laws; and for those related to the operation of the Central State Administration Agency (OACE) 3 laws must be passed. In the 43 years of validity of the 1976 Constitution, the ANPP passed 126 laws, which gives an average of less than 3 laws per year, including the approval of the annual state budget laws. If...

Cuban opponent José Daniel Ferrer, without a shirt, detained by the Cuban authorities on charges of participating in a violent incident against another person. Photo: Video shot of a special report on the case broadcast by Cuba’s state television.

Cuba and the right to due process: what is pending

The Cuban Constitution of 2019 dedicates articles 94 and 95 to the regulation of the right to due process. Both articles contain the essential foundations for Cuba to have the “right to due process” in accordance with the most advanced international human rights doctrine and standards. The origin of the right to due process of law is found in Anglo-Saxon law and dates back to the English Magna Carta of 1215, which states that no free man may be detained, deprived of his rights or property, or outlawed, or banished or deprived of his rank, nor may force be used against him except by virtue of a court ruling or by the law of the kingdom. The Constitution of the United States of America lays the constitutional basis for due process in Amendments V and XIV, which have subsequently had extensive judicial development, taking into account the Anglo-Saxon law system in force in that country. One of the most well-known aspects of the right to due process in the United States is the one known as the Miranda Rule or the Miranda warning or rights, in which the authority arresting a person is obliged to say the following: “You have...

Photo: Kaloian

Coming laws, or that should be coming, in Cuba

One of the problems of Cuban constitutionalism has been the lack of complementary laws for the implementation of the Constitution. The Magna Carta of 1940, one of the most advanced for its time, and with great contributions in the framework of social and economic rights, was limited in its application due to the absence of complementary laws regulating aspects such as the limitation of landholdings, the housing problem and other aspects, which were never put into practice, until after 1959. The same happened with the 1976 Constitution. Many of the complementary laws that were needed for its implementation were never passed. The honorable exception in this period was the constitutional text between the Constitutions of 1940 and of 1976, the Fundamental Law of 1959, which did have an extensive list of legislations. In the early years of the Revolution, more than 1,000 revolutionary laws were enacted, many of them at a constitutional level, which were the legal instrument for the transition from the neo-colonial bourgeois Republic to the new socialist Republic. The new Constitution of April 2019 makes more than 80 references to laws for its implementation and in the Thirteenth Transitory Provision gives the National Assembly of People’s Power...