His paper, El Derecho y la justicia en la identiad nacional<\/em> (\u201cLaw and Justice in National Identity\u201d) essayed a kind of summary of how national identity also draws from a certain conception of legality, stemming from Roman Law (which is at the root of Spanish Law), the persistently civic mindset of our first thinkers and independence war leaders, the constitutionalism of Cuba\u2019s Mambi<\/em> independence fighters and Jose Marti\u2019s complex republican conception of \u201cby everyone and for everyone.\u201d<\/p>\n \u201cWe have gradually lost the tradition of regarding jurists and law experts linked to politics as important.\u201d In the recent past, Cuba experienced a kind of \u201cjuridical nihilism\u201d, a period of time in which no one studied Law and the teaching of Law focused entirely on its practical applications, in which the philosophy of Law was eliminated as a subject. This was coupled with the development of a certain degree of legal insecurity, stemming from the fact that Cuban laws, including the constitution, were not widely divulged and were mostly unknown to the public, because of scant legislative activity (a mere 119 laws were approved from 1976 to the present) and the overabundance of minor decree laws and norms that aren\u2019t approved by Parliament, or owing to the secrecy, contradictions and imprecisions arising within Cuba\u2019s (in some ways unsystematic) legal system.<\/p>\n \u201cThe letter of the constitution has been virtually frozen for 40 years. Today, in practice, we have many more rights than the constitution recognizes, which isn\u2019t to say we don\u2019t need many more rights.\u201d<\/p>\n What\u2019s most disquieting today, Fernandez Estrada says, is the way in which certain prejudices have survived and made it impossible to make headway in the area of rights. \u201cToday, we continue to be the victims of prejudices regarding human rights and public policy concepts. We have to put these prejudices behind us if we aspire to establish the rule of law. If in 2015 we are still unable to speak about human rights in the State media, I fear those rights won\u2019t appear in the new constitution\u201d which is presumably being drafted behind closed doors.<\/p>\n Fernandez Estrada fears that the new constitution, rather than guide the changes in Cuba, will be used to ratify a specific politics. According to former Attorney General Ramon de la Cruz Ochoa, \u201cthe revolution has traditionally placed facts before laws.\u201d<\/p>\n Such an instrumental conception of law is not the most appropriate, the professor believes. \u201cThe idea that law is merely an instrument fits well with the rigidity and top-down nature of the State. In some cases, public administration representatives benefit from a body of law that always comes to resemble what they\u2019ve done. In other cases, on the basis of a more refined and conscious ideology, they take advantage of this to take away people\u2019s ability to act,\u201d he remarks in an exclusive interview for OnCuba.<\/strong><\/p>\n \u201cIf we conceive of constitutional changes as a call for participation aimed at changing and thinking about the country in the long term, as the opportunity for a democratic exercise for the foundation of a new social pact in Cuba, we would not be content with laws that merely resemble the reforms we\u2019re undertaking, but instead we could take on something more ambitious.\u201d<\/p>\n Nearly the entire history of the Cuban revolution has been that of a government besieged by an external enemy. These circumstances underpinned the idea that the republic could wait for many individual rights, rights that could be suspended in view of the urgent need to defend the sovereignty and independence of the country, understood as a totality.<\/p>\n \u201cThe heated debate between Agramonte and Cespedes is still relevant today. What kind of a republic do we want, civilian or military? Do we want a country that is ready for war or one based on the rule of law? The romanticism of placing the law above everything else, even in the midst of war, should be a source of inspiration for us today.<\/p>\n That, however, \u201cis a very reductionist reading of what a democratic republic can do,\u201d Fernandez believes. \u201cIt\u2019s been demonstrated that the claim that we cannot have political pluralism, establish the rule of law or abolish the death penalty because that would make us weak before the enemy is a political reading of the situation, and that there was another alternative: that of fighting imperialism by distancing ourselves from it in all senses, to become increasingly democratic and pluralistic, to be more respectful of legality and create a true socialist alternative in the world.\u201d<\/p>\n Cuba\u2019s 1976 constitution does not describe the country as a \u201ccastle under siege.\u201d For the historian, however, this conception has permeated political praxis and the interpretation of the law in Cuba, leading to the development of anti-democratic and anti-popular dogmas, such as the notion that \u201cthe people are not prepared\u201d for a given change.<\/p>\n \u201cIf you said \u2018let\u2019s work to abolish the death sentence,\u2019 they\u2019d reply \u2018no, the people aren\u2019t ready for that.\u2019 If one called for equal rights for different gender identities, the reply was \u2018no, the people are male-chauvinistic and homophobic, they\u2019re not ready for that\u2019\u201d.<\/p>\n \u201cWell, the Cuban people weren\u2019t prepared for socialism in 1959 and no one waited for them to prepare themselves adequately. The people weren\u2019t ready for the criminalization of racial discrimination, having been brought up in a racist society, and we did it, because those laws were aimed at transforming society.\u201d<\/p>\n The initial impetus of those processes then changed directions. This can be easily caught sight of, for instance, in the attitude assumed towards prostitution. \u201cIn the 60s, without any kind of socialist tradition behind us, we turned prostitutes into decent members of society, with trades. Later, however, when prostitution reappeared in Cuba, years after the revolution became established, we chose to sweep the filth under the carpet and started saying that what we need to do is \u201cput away\u201d jineteras<\/em> in \u201ceducational\u201d establishments (identical or similar to prisons) for up to four years, so they will not be seen by tourists. These are two ways of using the law: one revolutionary, one not.\u201d<\/p>\n From all of recent history, Cubans should learn to grant individual rights, such as political participation and pluralism, with the same degree of importance than that accorded to the country\u2019s sovereignty and independence.<\/p>\n \u201cIf you believe that democracy and human rights can be modified in dependence of the political context we live in, you fall straight into a trap,\u201d Professor Fernandez Estrada insists.<\/p>\n \u201cWe\u2019re still locked up in that trap as a country: our people don\u2019t talk about human rights because they thinks it\u2019s talking about counterrevolutionary groups. To date, it\u2019s been impossible to open a Human Rights Faculty at the University of Havana, because the authorities have said it can\u2019t be done. If you want to hold a conference about human rights, you have to call it by another name, because it is not well regarded.\u201d<\/p>\n \u201cWe\u2019re defensive about talking about it,\u201d he adds. \u201cWe neither suggest nor defend the progress we\u2019ve made on the subject, nor talk about what we need to do. We generally start by criticizing others to feel confident that what we have works. We never start by criticizing ourselves. We don\u2019t have to compare ourselves to anyone. Rather, we ought to say: \u2018we have to be better that what we\u2019ve been.\u2019 We need to give our people the best.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":" \u201cIn Cuba, there are people who believe the country can be transformed without legal reforms, or by implementing legal reforms later,\u201d jurist and historian Julio Antonio Fernandez Estrada complains. It runs in the family: he is the son of the late Julio Fernandez Bulte, one of the most renowned of Cuban jurists, professor of several […]<\/p>\n","protected":false},"author":2966,"featured_media":48074,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[13908],"tags":[],"ppma_author":[33699,6944],"class_list":["post-48071","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-society-cuba"],"acf":[],"yoast_head":"\n![\"cardenas\"](\"https:\/\/oncubanews.com\/wp-content\/uploads\/2015\/05\/cardenas1.jpg\")
<\/p>\nDemocracy Is Possible Under Siege<\/h3>\n