The discussion process that led to the current Cuban Constitution is not a process that culminated one day in April 2019 with its proclamation. Today the Constitution is in permanent discussion, this time without neighborhood assemblies or meetings in workplaces, the kind that brought many people closer to and interested in “constitutional issues,” whose aim was to infuse with “constitutional passion” a people without much practice in these matters.
This time the Constitution is constantly being discussed and confronted to measure the degree of violation of its precepts in the face of discrimination, state practices and diverse agents of Cuban society and also the quality and compatibility of its regulations with internationally agreed standards.
At times like those in which Cuba is living, talking about the Constitution, its political design, what was lacking, what needs to be perfected, how it responds to the vast demands and how practices respond to the wishes of Cubans, will never be one more subject more.
On this occasion, Cuban Voices talks with Mylai Burgos Matamoros, Cuban, Research Professor at the Academy of Law of the Autonomous University of Mexico City, Graduated in Law from the University of Havana, with postgraduate studies in Law and Latin American Studies in UNAM, Mexico. In the last ten years she has dedicated herself to accompanying social movements in Mexico for the defense of human rights. She has several publications on these topics, including books, scientific and informative articles in Mexico, Brazil, Cuba, Argentina, Colombia, Ecuador.
Is the political design capable of absorbing and managing the demands of complex Cuban society?
The current Cuban institutional design, thinking about it from some fundamental areas of the new Constitution (2019), is qualitatively superior to absorb and manage the demands of today’s Cuba.
I am going to focus only on the point of the new regulation on human rights, its principles and the envisaged guarantee mechanism.
At present, the Cuban institutional model could have a certain capacity to absorb social demands based on the fact that it has recognized human rights in its entirety, it has expanded its catalog in terms of content. It has foreseen its universal principles, its contents (with reservations in social rights where limits were established in goods such as water and education at the postgraduate level), and eliminated existing restrictions in the previous constitutional norm (1976) regarding the freedom of expression, press and association.
In addition, it has regulated principles associated with the transversal logic of human rights such as equality and non-discrimination, the latter with an open clause to provide for any condition that implies a discriminatory act.
Lastly, it has foreseen issues related to the different forms of gender violence, the types of inclusive and plural families, and the establishment of some new guarantee mechanisms for the enforceability and protection of all of the above.
Said regulation implies a route towards the satisfaction of the social, economic and political needs established in the content of the rights, needs that if they are not covered, are legally transformed into the rights that can be demanded for their compliance.
For the first time, a judicial guarantee mechanism for rights is legally established in Cuba (Art. 99). This is one of the most effective ways to demand them in the face of their violations, whether due to non-compliance by the State and/or violations of private powers.
What is your opinion of this procedure for the protection of the constitutional rights of Article 99?
At this point we have a large practical deficit. The guarantee mechanism provided for in Constitutional Art. 99 is not implemented through secondary legislation, it does not plan to act procedurally, so its recognition is completely ineffective due to its lack of operability.
From this point of view, human rights become paper rights. It is not enough to recognize them in a legal and legitimate document (due to their levels of consensus derived from the constitutional referendum process), what prevails is the need to have operational mechanisms to demand rights if they are violated.
What other forms or mechanisms do you notice for the protection of rights in Cuba?
Right now in Cuba there is no way to demand the violations of human rights provided for in the Constitution itself. Therefore, there is no way to channel the above-mentioned demands that Cuban society has today. It should be added that it is no less true that administrative, civil, economic and criminal judicial channels are maintained to carry out demands regarding their competence, but they have never been used as channels to defend human rights. On the other hand, the constitutional complaint or petition is still foreseen (Art. 61), but historically this has not been effective because it mostly constitutes a formal mechanism and not a conflict resolution mechanism.
At this time, based on institutional action, various phenomena are expressed that involve human rights violations that can be expressed as bureaucratic articulations, corrupt or repressive attitudes in administrative, police spheres, or positions of political voluntarism in the judicial sphere. There are also violations of rights derived from discriminatory attitudes among the different social groups developing in today’s Cuba.
All these situations could be limited by an arbitrator, a “third party” who acts as a decision-maker and defender of the human rights of individuals and groups. That is why the still not established guarantee mechanism could be one of the channels of social, economic and political demands that are expressed today on the island. Above all, when the disagreement is latent between state decision-makers and part of the citizenry, and/or between certain social groups with different positions of power.
What other deficient elements do you identify in the institutional design that regulates the Constitution?
The inexistence of a constitutional control body (Constitutional Court) to ensure compliance with the Constitution itself: its supremacy over legislative acts of any lower level (Laws, Decree-Laws, Presidential Decrees, administrative regulations of all kinds and at all levels) and thus defend human rights against state violations in the field of creation of legal norms.
The 2019 Constitution establishes that the National Assembly of People’s Power (ANPP) exercises constitutional control (Art. 108 e) as it was established in the 1976 Constitution, but it is well known that this action has never been exercised during that previous constitutional period, nor in the barely two years of the new Magna Carta. One of the reasons for this inaction of the legislative body is because the National Assembly is constituted as judge and party, as it is the one that approves the laws and ratifies the decree-laws of the Council of State. In addition, there is a regular legal practice of approval of unconstitutional lower-ranking regulations, which may be in conflict with the supreme law.
For all these reasons, it is necessary to have a Constitutional Court, which independently ensures constitutional supremacy (Art. 7) with a human rights perspective, that it be elected by the supreme body of state power (ANPP), but is accountable before it and have autonomy in the exercise of its functions.
The establishment of the autonomy of the People’s Courts as judicial instances, above all, before the political instances (Communist Party of Cuba and the Union of Young Communists) and executive instances (State and Government or Presidency and Prime Minister with the Council of Ministers) is necessary and prevailing for them to act as a true arbiter, without political voluntarism, in the face of human rights violations of individuals and groups.
Establishing a single jurisdictional mechanism, which as we have commented is not yet regulated at the regular level, would be something minimal, when at the global level there are multiple jurisdictional and semi-jurisdictional processes in the defense of human rights, where the people who feel affected (citizen or not) can go to resolve the action or omission of the state or of a particular violation of their rights.
Following this line, what could have been the ways of defending the Constitution?
Multiple avenues of defense could have been established:
- A protection trial, with regular levels of appeal, up to the Constitutional Court in some cases, with the power of appeal for investigation in case of serious human rights violations. Or foreseeing a trial such as guardianship, habeas data, in addition to the already provided habeas corpus (Art. 96), which are of expeditious operation before the imminent violation of rights such as freedoms, for example. All this could have constituted a whole constitutional chapter.
- Regarding non-jurisdictional systems, they could have provided human rights defenders, at the national and provincial levels (jurisdiction), where the procedures are more flexible, seek mediation and/or conciliation to repair the violation of human rights. Its resolutions have the character of recommendation, not binding, but with sufficient political force in terms of autonomy to point out the existing vulnerabilities and their respective reparations, the state instance having to accept them compulsorily.
- Another specific non-jurisdictional entity that could have been regulated is one that specifically defends the Principle of Non-Discrimination, since this, as a transversal axis of all human rights, can be violated not only by the State but by private citizens (individuals or legal entities).
- Also, another very necessary state agency at the national and local level is the one that responds to access to truthful, adequate and timely information (Art. 53), through a procedure, where people can request the respective information of all kinds of State action and private entities regarding their relations with state entities.
From a practical point of view, I would like to mention other phenomena. It should be noted that the old mechanisms continue to function, such as the constitutional complaint and petition (Art. 61), which is used in writing to obtain a mandatory response to any state, governmental authority or legally recognized political, social and mass organizations, being well known its formality and ineffectiveness in its majority, as I already mentioned.
Also from the point of view of the Cuban state political functioning, it is no less true that the state and its instances, its political and social organizations, during the revolutionary process have been characterized by working in order to meet the economic, social and political needs of the majority of the population.
But the most frequent phenomenon in decision-making has been that citizens are always subject to decision-making from the instances of political, state or organizational power, even though assembly processes have been carried out where everything all type of citizen claims are presented, the final decision almost always rests with the state, governmental or organizational instance itself, and not through popular binding processes.
The matter when it comes to making dissents viable is worse, since these always lag behind the decisions of the authorities and the majorities, which implies a null channeling.
Lastly, I want to mention a phenomenon that has to do with the Cuban institutional functioning and that does not allow to effectively make social demands viable through current mechanisms: the scarce culture of public service. There are exceptions, but a large part of the institutional functioning operates with bureaucratic behaviors, with indolence in the face of sensitive issues, neglect due to lack of incentives, ignorance due to lack of training and a logic of verticality in decision-making because they have the power to do so and their behaviors go unpunished due to the impossibility for citizens to claim, complain and demand effectively.
In the current context, what do you think would be the role of the intellectual in Cuba today?
Revolutionary intellectuals (who revolutionize, who transform, because they fight against oppressions seeking personal and collective liberation) have the responsibility to always generate critical thinking.
Whatever the political and economic system, the revolutionary intelligentsia must be critical of any type of oppression, which is always expressed as power. Therefore, the criticism must have at the center the state oppressions, but also those of the capitalist market that accumulates and excludes, the patriarchal ones that cross all political and social spaces, including those of the domestic field called private.
In addition, due to the relationship between the intellectual and culture, the intellectuals must be critical of the functioning of the field of cultural, understanding this as all the cultural networks of productions of senses accommodated to ideologies that create hegemony that are linked to the aforementioned oppressions.
Also, critical intellectuals must generate thought that fosters liberation, not remaining in the field of negativity, without proposals, without articulations, or resignifications of meanings of everything that oppresses us. Doing so involves intercommunication and horizontal translation processes.
Anything else that is done is the replication of a thought subordinate to some oppression, to some power, whatever it may be.
This also exists, in Cuba and outside of it, from official and unofficial positions, and whoever does it may have the category of intellectual, but their attitude is not critical or revolutionary.
At this point, claiming plurality, emphasizing the differences, which are the foundations of any transformation, is fundamental. The plurality and difference that is placed as an essential basis for dialogue and construction must have an unquestionable principle: the common struggle against oppressions. Without it, plurality and differences have an empty meaning, insofar as it is a particular that imposes, stigmatizes and excludes.
Today there is a great debate on the foreign financing of projects aimed at subversion in Cuba. How to understand this phenomenon in the Cuban political and social context?
To think about Cuba today, you have to look at its history in the last two centuries.
The Cuban political and social context of the 20th and 21st centuries is framed by the fact that identities, struggles, resistances, subordinations and transformations have been closely linked with the United States, under the logic of governmentality mechanisms (technologies of domination from the macro to the subjective) based on its global economic, political and cultural imperial projection.
In addition, it is more than known that the political, economic and social processes in Cuba, internal and external, since 1959 have been mainstreamed by U.S. aggressions and confrontations towards the island, to dominate it, subordinate it, reflected in the resistance and confrontation the Cuban Revolution has implied for the United States and the world.
Paradoxically, too, there have always been interactions between the two countries: subordinated, of resistance and collaboration in all social fields where Cubans living on the island and outside it, the Americans themselves, and also both governments have participated.
In this sense, the debate that is taking place today on these issues is understood under this logic of real, historical and not just discursive confrontation. Any action (whether in terms of financing or not) that arises or crosses U.S. governmental entities with the objective of subverting the Cuban political system will be condemned by broad social, political and governmental sectors inside and outside of Cuba.
On the other hand, within the same logic, these actions will be approved, applauded and legitimized by the social, political and governmental sectors that promote, use and benefit from them. These groups, sectors and the media are very defined, clearly perceived and are children of confrontation.
Perhaps the most relevant thing today, in my opinion, is another phenomenon. How some new and not so new generations of Cubans from outside and inside the island, give a more balanced weight to the confrontational process. Although the conflict exists, they accept it, recognize it and criticize it, they consider that it must be transcended today. The causes of that understanding are multidimensional.
One of them could be the erosion of the discourse of blaming the economic and commercial blockade of the U.S. against Cuba for all the evils of an island that has suffered an economic crisis for more than 30 years.
In this sense, it is understood and recognized that many internal problems are derived from Cuban state and governmental decisions, and not only from the famous U.S. sword of Damocles.
Another issue is the understanding that there is a neighbor who cannot change its physical place by nature, nor its global imperial position due to the logic of the capitalist world system.
The two issues go beyond the island which is ninety miles away. Based on the struggles and resistances, the economic and social suffering that the Cuban people have undergone and undergo, and the imperial failures themselves in trying to subdue it, many actors have made the decision to have a relationship of non-aggression, of a certain concord, civilized, where dignity is not lost in terms of basic constitutive principles from Cuba fundamentally.
These actions are personal, collective and state. It is demonstrated when Cuban state actors carried out the process of restoring diplomatic relations with the U.S. government itself in 2014 under the conditions described above.
There have also been multiple dialogue processes throughout recent revolutionary history (migration, communications, security issues, trade exchanges, etc.).
In this sense, it has been shown that when many Cuban and non-Cuban civil actors articulate dialogues, exchanges from culture, academia, migration, tourism and the economy based on this civic and respectful logic, they have represented less precarious consequences for the residents of the island and in essence, greater dignity for all.
Facing injustices, not ignoring them, makes you an honorable person, denouncing them at the moment of conflict, but life cannot be an eternal conflict, that perpetuity cannot be sustained either physically or psychologically.
It is from this assessment of actors that sectors, groups and media can be defined. Those who assume a confrontational logic on one side or the other are clear, and also vary and change due to certain contexts.
The problem is in those who are at the point of dialogue, reconstruction, criticism (of the U.S. aggressions, but also of the inefficiencies of the Cuban political system), where there can be many shades, many colors and many worlds.
In this sense, from all this multiplicity of actors I assume that where there is a possible commission of crimes, of those provided for in Chapter I of the Cuban Penal Code (Law 62 of 1987) referring to Crimes against State Security, it must be reported, processed, guaranteeing all due process, and if it is the case, sanctioned.
In the face of legal processing, information must be provided, truthful, transparent, with dignified treatment, because no person can be the object of another type of treatment, even when they have committed crimes.
Now then, to accuse through the media is not to inform, ad hoc courts of opinion, of stereotype, are being created, which have the purpose of stigmatizing (even if there is some evidence of any criminal act committed), and it is ethically reprehensible, it is perverting the act of justice. Giving power to the media as is being done today in Cuba and has been done for a long time in the world, is to give way to the show, to stridency, to the performance, which is always fallacious, which does not carry in itself the balance of justice, the measure of reason. The way will always have to be the law, the legal and legitimate arbitrator.
The ethics, dignity and humanism of a revolutionary process such as that of Cuba cannot be based on a comparison with what the rest of the world does through the media. This is a regular practice. This is what happened with the case of Lula Da Silva while he was being tried in the Courts, making political use of the law and the press to create states of opinion against the Brazilian leftist politician.
The Cuban State that intends to articulate this revolutionary project should not and cannot be the same as them. The difference is that the media in Cuba are public, government-run, while in the world, they are mostly private. This does not imply, per se, differentiated ethics in their uses, but it is a reality that private ends and interests give greater space to manipulation and lies.
An eye for an eye, a tooth for a tooth, the manipulation that encourages fallacies, used by state guidance in the Cuban public media today, in the face of the different conflicts that have occurred in recent months, arguing the defense of national interests, puts us on the side of meanness in the face of truth and justice.
Living up to the humanist ethics that is the foundation of the Cuban revolutionary project is the challenge of the entire Cuban State as a whole today.