The National Assembly of People’s Power (ANPP) approved on December 21, 2019 the legislative schedule for the current legislature. [1]
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 we don’t take these into consideration, the average would be close to 2 laws per year.
With the new schedule, a minimum of 14 laws must be approved in 2020, 9 in 2021 and 16 in 2022, not including the annual state budget laws.
This demonstrates the political will to strengthen the legislative role of the ANPP, which is not only an institution to create laws, but is formally the organ of supreme power of the State, according to constitutional article 102, and is also the main responsible body for the control of constitutionality.
Although the agreement of the legislative schedule mentions that the Ministry of Justice also presented the proposals for regulatory provisions for the next legislature (2023-2028), these do not appear approved in any ANPP agreement, although they were disclosed by different media. [2]
For that legislature it is expected that 24 laws and 13 decree-laws will be passed. The thirteenth transitional provision does not distinguish whether that schedule is approved by legislatures, it only says it must be approved in a year, perhaps in the April 2020 session the ANPP approves the schedule from 2023 to 28, but that transitional provision will have been partially complied.
One of the big problems of legal systems is the normative dispersal and the Cuban system is no exception. The tendency should be to avoid it and reduce the number of legal provisions that regulate a specific sector.
In law systems such as the Cuban (Roman-French-Germanic), codification plays a central role in this regard, since in only the normative body the fundamental aspects of a branch of law can be regulated, so we have the penal, civil, family, labor codes and a 19th century commercial code, still partially valid.
The legislative schedule shows an attempt to reduce the dispersion, by proposing the approval of a Contraventions Code, but on the other hand the approval of multiple laws is foreseen for issues that, although they would not have to be codified, could be regulated in a single regulatory provision.
For example, four laws are being planned to regulate the legal status of people in relation to the State: a law on citizenship, one on identity, another on immigration and another on emigration, when all these normative provisions could be part of a single legal body.
In the same sense, several laws related to economic and commercial activity are being foreseen, such as the law on enterprises, the law on arbitration and mediation, the law on mercantile societies and others, without there being anything against integrating all of them into a new Commercial Code, which includes aspects which have also already been regulated with a very good legislative technique, such as economic contracts (Decree-Law No. 304/2012 and Decree No. 310/2012).
Perhaps the most worrying aspect of the schedule is that it provides that important rights be regulated through lower-level regulatory provisions, such as those on assembly and demonstration, on the protection of personal data, which violates article 263 of Law No.131 / 2020 “Law of Organization and Functioning of the ANPP,” which expressly provides: “The Council of State, by means of decree-laws, can exceptionally modify the laws, except those referring to rights, duties and constitutional guarantees or to the integration and functioning of the higher organs of the State.”
Therefore, it is clearly prescribed that constitutional rights and their guarantees can only be regulated by law. In that same sense, the chairman of the Constitutional and Legal Affairs Committee affirmed that: “following the same doctrine that the Constitution prescribes, the laws that establish the rights, duties and guarantees of citizens, or regulate the composition and integration of the higher bodies, will be sacred and cannot be modified by decree-laws.” [3]
That the ANPP approves a law in its agreement 45 and in the same session, in agreement 49, approves a legislative schedule that denies what it had just approved, is contradictory. It is inaccurate that in the schedule it is stated that the objective of the decree-law for the regulation of the rights of demonstration and assembly is to implement the Guidelines, when they in no case mention anything related to these rights.
On the other hand, the Constitution does clearly endorse that these rights are exercised respecting public order and what is regulated by law (article 56).
It is also interesting that CITMA is appointed as the deponent agency in the “Law on transparency and access to information.” Perhaps the reason for this is that this agency directs the issue of archives and document management; and is also the rector in environmental and chemical safety issues, fields that have the most advanced laws on transparency and access to information, such as Law No. 81/1997 on the Environment or Decree-Law No. 309 on Chemical Safety, which although their implementation has been very limited, are conceptually very well designed.
A law of this nature should not be limited only to what is related to the competence of CITMA, rather its object of regulation should cover all aspects of state activity, as a guarantee so that the population can have access to information and can exercise control over state activity.
In this tight legislative agenda, many opportunities open up to be able to build a better and fairer country, but an essential point is to guarantee the greatest possible participation of the people in the legislative process and to ensure that it is not only formal, but really an expression of the exercise of popular sovereignty.
The legislative schedule, with all the deficiencies that it may have, is a significant step that marks a change in the way of legislating in Cuba, since this is public and marks the commitment of the State to enforce the constitutional mandates that the people granted them and it gives citizens an important weapon to control their representatives and verify whether they comply with what has been agreed.
In the new laws, opportunities are opened to incorporate into our legal system the most advanced and guaranteeing concepts in legal matters and it is also the opportunity to banish from our laws archaic concepts that harm our Law so much.
Let’s hope we begin to move towards the conquest of a true rule of law and that the new Constitution doesn’t suffer the fate of those of 1940 and 1976 or its content just remain on paper.
Notes:
[1] Agreement Number IX-49, published in the Gaceta Oficial Ordinaria No.2 of January 13, 2020.
[2] “Aprueban cronograma legislativo de la nación por etapas, y presentación del Código de las familias en 2021,” in Granma, consulted on January 17, 2020.
[3] “¿Qué leyes deben aprobarse durante 2020 en Cuba?” (+ Infographics and Video), in Cubadebate, consulted on January 17, 2020.
Authors
Michel Fernández Pérez,
michelfernandez
