By Walter Mondelo
The entry into force of the new Cuban Constitution on April 10, 2019 generated considerable debate, especially on different digital sites, on the most innovative and transcendent issue of the new constitutional text: the proclamation of Cuba, in Article 1 of the Magna Carta, as rule of law. However, three and a half years later, it must be admitted that the transformation of the Cuban legal order, required by the principle of constitutional supremacy and the mere logical coherence of the order of regulations, and ordered by the Constitution itself with a specific and detailed schedule, is under way with considerable slowness and in a direction that seems aimed at reducing, rather than enhancing, the practical implementation of constitutional mandates.
Along with this, the gradual fading of the issue in public debate is of great concern, especially in the official media, in which the issue of the Constitution and, in particular, the rule of law has been eclipsed, in favor of whatever situation, relevant or not, claiming attention. In a certain sense, it seems as if, for some, it would be enough to proclaim that Cuba is a Rule of Law for it to be so, as if it were an abracadabra. This, strictly speaking, reveals the persistence of a mentality, common to the countries that were part of the so-called “socialist camp,” characterized by the underestimation of the Law and the legal guarantees of citizens, together with a sacralization of political power over society or, to put it in the words of Karl Marx: “superstitious prostration before authority.”1 Reflecting on these issues today seems vitally necessary, even in the midst of the circumstances we are going through, since the promise of the Constitution, approved by a vast majority of the sovereign people, in the exercise of its constituent power, is at stake. The following lines are dedicated to this.
To start at some point, it is always convenient to make a brief historical review. It is important to keep in mind that the millenary tradition of republican freedom (erroneously reduced to its amputated and distorted liberal version) has been a backbone and keystone of Cuban constitutionalism. Suffice it to remember the republican symbology contained in the flag of the lonely star, in the coat of arms of the Republic and in the Bayamo Anthem. Perhaps the best expression of that idea of republican freedom is contained in the text of the Guáimaro Constitution and in some of its most remembered articles, but not very well understood. The neglect or contempt of that tradition, for confused or spurious reasons, has been perhaps the greatest shortcoming of Cuban political and legal thought and practice after the Revolution. Now it is time to correct this shortage, from research and also from daily political praxis; to turn politics into a res publica, into everyone’s business, to rescue the notion of citizen as the political identity of every Cuban and Law as a framework for freedom and politics. All of this cannot be postponed for the present and, even more so, for the future of Cuba as a political community under rule of law, organized as a democratic republic, as established in Article 1 (the materially most important article) of our Constitution.
Since the mid-1980s, after decades of neglect, a process of rescuing the best and most advanced of our legal thought began in Cuba, which brought back to the academic debate notions such as rule of law and others related to it, such as that of Human Rights. A process whose initiator and greatest promoter was the distinguished professor Julio Fernández Bulté, who in 1992 published in the Revista Cubana de Derecho an essay, as timely as it is illuminating, on the rule of law, its eclipse in socialist thought and its necessity for Cuba. That text by Bulté marked the beginning of a process of recovering the most solid of our legal traditions, and a necessary and healthy meeting with the most illustrious authors who had theorized on the rule of law, since the Enlightenment and the great revolutions of the 17th and 18th centuries to the present day.
In the wake of Fernández Bulté, a series of important Cuban jurists, in articles, monographs and master’s and doctoral theses, began to debate, in various academic spaces, the notions of the rule of law, the rule of law, human rights, their procedural guarantees, the due legal process, the role of the Constitution in the legal order and other associated topics, which without a doubt started opening the panorama of Legal Sciences in Cuba and training in the study and importance of such matters to a new generation of jurists, in addition to erasing, incidentally, the syndrome of suspicion linked to the expression Rule of Law.
This contributed in many ways to the decision-making bodies of the country raising the issue of institutionalizing the Rule of Law through a new Constitution, which would update many of the contents of its predecessor, irremediably weighed down by the clichés of Soviet legal thought and of the socialist camp at the time of the Cold War, and that it also incorporate into our constitutional text the most recent advances of the best of universal constitutionalism, including the so-called “New Latin American Constitutionalism.” On the other hand, it was already evident that the constitutional reforms of 1992 (the deepest and most transcendent) and of 2002, although they partly remedied some of the most notorious shortcomings of the 1976 Constitution, were insufficient in the face of obsolescence, not only regulatory, but mainly of the axiological architecture and the ideological postulates of 1976, maintained despite the reforms.
New contents of the 2019 Constitution: the socialist rule of law
Faced with the situation of the exhaustion of the statist and bureaucratic model of Cuban socialism, the response was the reforms designed in the Economic and Social Guidelines of the Communist Party of Cuba (PCC); approved in its 6th and 7th Congresses, and totally or partially put into practice as of 2010 through a series of regulations contained in different decree-laws and decrees, the former issued by the Council of State and the latter by the Council of Ministers. The Constitution then in force, in practice, was surpassed by the Guidelines and the legal regulations derived from them, with the consequences that this implied for the mere functionality of the legal order, not to mention the conflicts between opposing values, the conceptual contradictions and regulatory gaps. Finally, in July 2018, the beginning of the process called Constitutional Reform was announced (in practice, it became a constituent process), at the end of which the new Constitution was approved on February 24, 2019, which entered into force. on April 10 of the same year.
Regarding the novelty and progressiveness of the text, its greatest merit consisted in rescuing the idea of the socialist rule of law,2 a taboo subject for socialist constitutionalism, which for decades rejected it as a bourgeois idea when, strictly speaking, it is a formulation of the best heads of Enlightenment thought, from Spinoza and Locke to Rousseau and Kant.
The formulation of the Cuban Constitution includes some of its contents, such as constitutional supremacy, the rule of law, and a wide range of rights and guarantees, with the recognition of same-sex marriage,3 the prohibition of discrimination based on gender identity, ethnic origin and disability, the extension of the contentious-administrative process (very reduced at present). Instead, it leaves out the separation of powers, a sign that the old dogmas of real socialism still survive.
The legal doctrine of real socialism was practically unanimous in attributing a supposed liberal-bourgeois character to the very idea of the Rule of Law, something that does not go well with the history of the hundreds of years of popular struggles, uprisings and revolutions that have cost recognition of this conquest of humanity. The separation of powers (with legislative supremacy, something that is sometimes forgotten) is one of the nuclei of the Rule of Law, and its origins can already be traced back to the various power control mechanisms tried by the Athenian demokratia and some of the institutions of the Roman Republic (such as the tribune of the plebs).
As is known, the Rule of Law was formulated by John Locke in the way we know it today, and later by Baron de Montesquieu; it belongs, therefore, to the republican tradition, which was inspired by classic models. This does not prevent, of course, that liberalism has appropriated it, in the face of the “suicidal” abandonment by 20th-century socialist thought and praxis of its republican roots. On the other hand, there is a frequently repeated conceptual confusion on this subject, which it is not idle to point out: the sovereign power of the people, of the community of all citizens, is obviously indivisible; the separation of powers refers to the powers delegated by the sovereign people, who act as constituents, in their trusted agents: the rulers. Their powers must be separated, to prevent them from usurping popular sovereignty, if they concentrate too many powers in their hands. Note that this is a problem that Roman Republican Law was always very aware of and that has been, for centuries, a crucial issue in the republican tradition: what precautions and institutional mechanisms should be established to prevent leaders from acting against the interest of their constituents, ever-present danger, given that they handle information and possess knowledge, skills and powers that their constituents do not have. It is also worth remembering Lord Acton’s famous warning: “Power tends to corrupt; absolute power corrupts absolutely.”4
Similarly, in Cuba, the new Constitution substantially expanded the catalog of rights, recognized more rights for the accused in criminal proceedings, granted constitutional status to habeas corpus, and introduced for the first time a version of habeas data, the right of citizens to know the information that exists about their person in public records, including the protection of computer data. In addition, for the first time in revolutionary constitutionalism, the citizen’s right to judicial claim for the violation of constitutional rights was established and, also for the first time since 1959, the autonomy of the municipalities was recognized. There is no doubt that this means an enormous advance in Cuban constitutional law and, in general, a necessary updating of the legal order in accordance with the best international standards.
However, the existence of two transcendental regulations foreseen in the constitutional draft, presented for popular and parliamentary discussion and that disappeared in the definitive drafting of the constitutional text, should not be forgotten. The first of them: the obligation to interpret the rights recognized in the Constitution in accordance with international treaties on the matter,5 probably the greatest step forward in Cuban Law on this matter and which is part of the most advanced trends in Constitutional Law and International Human Rights Law.
Its importance would have been paramount, since it would have forced the Cuban courts to follow the best interpretive practices in the matter, always in favor of the most guaranteeing regulations and broader rights for citizens. The second, the possibility of ceding sovereignty in favor of integration, in article 18 of the preliminary draft,6 in accordance with the most current iuspublicist doctrine, and which ensured that, if such a possible integration were to occur, it would have constitutional recognition and support. Without any public explanation being given, they disappeared from the final draft, undoubtedly a significant setback, especially in the first case mentioned, and one that puts at risk many of the desirable advances in human rights that the new Constitution makes possible. A more obvious danger today in view, for example, of the markedly repressive and punitive nature of the new Penal Code, already approved by the National Assembly and soon to come into force. The fierceness in the death sentences and life imprisonment as punishment for a high number of different crimes is remarkable, together with a dangerously generic and too vague wording in many cases,7 which raises fears that the Criminal Law has been designed to restrict and limit the scope of constitutional rights and deactivate their exercise, as a first tool, instead of last resort, in the face of different manifestations of social conflict, as seen in the events of July 11 and 12 last year.
A similar concern emerges from the reading of the Law on Protection of Constitutional Rights, approved by the National Assembly to comply, with two years of delay, with the constitutional mandate of Article 99 of the Magna Carta, and already in force, because it designs a constitutional protection with limited scope and very broad discretionary powers for judges. To these design problems should be added the still limited knowledge of Cuban judges regarding issues such as values and legal principles, and their relevance for legal interpretation and argumentation, especially in constitutional matters.
As a whole, the 2019 Cuban Constitution has opened wide possibilities for institutional development that would allow the consolidation, regulatorily and practically, of the socialist rule of law; but this must go hand in hand with a profound transformation of the bureaucratic mentalities and traditions that have accompanied and burdened Cuban socialism since the early 1970s. Any space for citizen participation, any exercise of debate and dissent without stigmatization on the part of power, any understanding and openness to the various expressions of political identities and sensitivities within the constitutional framework, will be so many other achievements that will pave the way. On the contrary, any return and relapse into the old sectarian, exclusive and excluding logics, of the type “who is not with me is against me,” all open or covert censorship, all demonization of anyone who does not repeat the slogans like an echo, will continue blocking the fulfillment of the constitutional promise of the Rule of Law, with the very serious consequences that this would have for today, and above all, the future of our country.
The reconstruction and promotion of a civic and legal culture, both among officials and among citizens, is certainly essential for the promises of the new Constitution to be fulfilled, and for the present and future of the Cuban socialist project. It should not be forgotten for a moment that the 1976 Constitution, reformed in 1992 and 2002, was very far from becoming a binding legal regulation, and remained, until its replacement by the current one, just a framework of political declarations, objectives and desirable purposes, without being seen, neither by officials nor by citizens, as a true legal regulation of mandatory compliance. This now-expired vision of the Constitution must be overcome, and in the shortest possible time, if we want the constitutional text, approved by the sovereign people in a popular referendum in 2019, to become the true Law of Laws, the supreme source and the reason for the validity and obligatory nature of the Cuban legal order, and that the socialist rule of law goes from an ideal to a tangible, living and practical reality for all Cuban citizens.
1 Cf. Letter from Marx to William Bloss, in Marx, C. and F. Engels: Selected Works, Progreso publishers, Moscow, s/f, p. 712.
2 Full vindication of Julio Fernández Bulté and his seminal article of 1992, 27 years earlier.
3 It was eliminated from the Draft Constitution and deferred for a future Family Code, which after a process of popular consultation and public disclosure was approved in a popular referendum held on September 25 of the current year.
4 In the letter that Lord Acton sent in 1887 to Bishop Mandell Creighton, regarding the benevolent way in which he judged the abuses and corruption of the Church. Cf. Acton’s dictum, at www.wikipedia.org, consulted online on 9/14/2022, 8:15 pm.
5 It appeared regulated in article 39 in its second paragraph, which established: “The rights and duties recognized in this Constitution are interpreted in accordance with the international human rights treaties ratified by Cuba.”
6 “The Republic of Cuba, in its purpose of promoting Latin American and Caribbean integration, may, through treaties, attribute to supranational entities the exercise of the powers required for it.”
7 In total, 23 crimes can be punished with the death penalty and 31 with life imprisonment. In addition, the prison sentences provided for in many cases are excessive and disproportionate in relation to the damage caused to the tutelary legal right, also defined in excessively vague and generic ways (this is the case of crimes such as sedition, contempt, arbitrary exercise of constitutional rights, public disorder, etc.). Cf. Law No. 151/2022, Penal Code, published in the Gaceta Oficial No. 93, Ordinary of September 1, 2022.