Saturday, October 17, 2009

Cuba and Latin America from a Constitutional Perspective

Constitutional Reforms in Latin America from a Cuban Perspective

ARTICLE 62. None of the freedoms which are recognized for citizens can be exercised contrary to what is established in the Constitution and by law, or contrary to the existence and objectives of the socialist state, or contrary to the decision of the Cuban people to build socialism and communism. Violations of this principle can be punished by law. (1992 Cuban Constitution)

Cuba and the rest of Latin America today have a fundamental difference. The current government came to power in Cuba by force of arms overthrowing the previous dictatorship in 1959 that had ended Cuban democracy in 1952.

The rest of Latin America ranging from a healthy liberal democracy in Costa Rica to Venezuela where according to Human Rights Watch Chavez's willful disregard for institutional guarantees and fundamental rights that makes democratic participation possible is undermining democracy and although not yet a closed society I believe that Mr. Chavez would like to achieve that result, but unlike the Castro brothers he has had to face democratic institutions in Venezuela.

Venezuela along with all the other governments of Latin America came to power by the ballot box. Which meant as in the case of Weimar Germany that change towards a more authoritarian or totalitarian state would be carried out using democratic processes in the service of ending democracy and erecting a dictatorship. In the case of Germany it is important to remember that the Weimar Constitution of 1919 was never formally repealed but lived on as a dead letter through the entire Nazi Third Reich. In the case of Chavez elected in 1999 he has had to deal with an active civil society in Venezuela and international human rights organizations and NGOs scrutinizing his actions.

Nevertheless it is worthwhile to take a look at the Cuban Constitution and some of the specific articles and amendments that nullify its democratic planks and creates a legal base for totalitarian rule because they may be used to achieve the same ends in other Latin American constitutions. The centralization of power in the hands of the executive and the tearing down of the separation of powers: the legislative, the judicial, and the executive is a trend in Latin America in which Cuba is an extreme example. For example in addition to the structural centralization of power already mentioned in the current Cuban constitution the dictator is referred to by name in the preamble along with explicit references to specific military action such as: "the triumphant Revolution of the Moncada and of the Granma of the Sierra and of Girón under the leadership of Fidel Castro."

First it is important to place Cuba in its proper historical context beginning with Fulgencio Batista's coup de etat against Cuba's constitutional democracy followed by the struggle against the above mentioned dictator. Recalling that Fidel Castro's call for for restoring the 1940 Constitution along with the previous democracy while claiming not to be a communist and claiming to be a defender of civil and political liberties was an indication of what where popular positions among the citizenry.

The portrayal of Batista as right wing is simply false. He had legalized the communist party in the 1930s; helped communists to control labor unions in the 1930s; had prominent communists in his 1940 cabinet and when Batista accused his adversary of being a communist Castro was able to produce correspondence between the Cuban dictator and the communists demonstrating their friendly relationship while the young attorney denied the charge and denounced Batista as a hypocrite. At the same time pointing out Fulgencio Batista’s long association with the Cuban communist party: "What right does Mr. Batista have to speak of Communism? After all, in the elections of 1940 he was the candidate of the Communist Party ... his portrait hung next to Blas Roca's and Lazaro Pena's; and half a dozen ministers and confidants of his are leading members of the CP."

The United States placed an arms blockade on Batista in late 1958 and the dictator fled into exile on December 31, 1958. A new regime was ushered in promising democracy and elections but delivered neither. Although there was a Fundamental Law enacted on February 7, 1959 that superseded the 1940 Constitution using dubious means of enactment Fidel Castro through political intimidation; initial early popular support, and the selective use of terror was able to first muzzle the press, shutdown the newspapers, purge all political opponents, hold mass executions that instilled fear in the population which enabled him to rule in practice by decree until 1976 when a Stalinist Constitution was installed in exchange for increased Soviet aide.

Following the collapse and dissolution of the Soviet Union the 1976 constitution got an overhaul in 1992. The reference in the preamble to the fraternal friendship and cooperation of the Soviet Union was removed but the totalitarian nature of the regime remain unchanged and in 2002 following the success of the Varela Project which used a plank of the constitution that democrats could exploit to seek reforms led to a constitutional amendment to make the Communist Constitution untouchable.

The current system recognizes only one legal political party in Article 5 of the current constitution which is the Communist Party of Cuba and is described as "the organized vanguard of the Cuban nation, is the highest leading force of society and of the state, which organizes and guides the common effort toward the goals of the construction of socialism and the progress toward a communist society."

Freedom of speech and of the press is confined in Article 53 of the constitution to "the objectives of socialist society," and "the press, radio, television, cinema, and other mass media are state or social property and can never be private property." In practice this "social property" unlike the public television in democratic countries is at the service of the one party dictatorship and for years Fidel Castro would appear on newscasts providing commentary.

It is important to point out that Article 62 of the constitution explicitly states that "None of the freedoms which are recognized for citizens can be exercised contrary to ... the existence and objectives of the socialist state, or contrary to the decision of the Cuban people to build socialism and communism. Violations of this principle can be punished by law." Cuban citizens can either support socialism and communism or suffer the consequences.

Legal Basis for the Varela Project

ARTICLE 88. The proposal of laws is the responsibility of: a) the deputies to the National of People’s Power; b) the Council of State; c) the Council of Ministers; d) the commissions of the National Assembly of People’s Power; e) the Central Organization of Cuban Trade Unions and the national offices of the other social and mass organizations; f) the People’s Supreme Court, in matters related to the administration of justice; g) the Office of the Attorney General of the Republic, in matters within its jurisdiction; h) the citizens. In this case it is an indispensable prerequisite that the proposal be made by at least 10 000 citizens who are eligible to vote.

Attempts by Cubans to exercise their fundamental rights within the existing legal system to petition the Cuban government to reform itself based in Article 88 of the constitution have met with repression. For example, the Varela Project with 25,404 Cuban citizens’ signatures presented in 2002-2003 to the government petitioning for political and human rights reforms and [for a new electoral law in accord with international standards] was attacked by the regime both at a systematic and at an individual level.

In the Cuban case the dictatorship’s initial response to the request for reform was to announce its own petition drive to amend the constitution and declare it “untouchable” in a referendum equally as undemocratic as the system which the Varela Project seeks to reform. One needed to sign the government’s “petition” or risk losing their jobs or their children’s educational opportunities. On the eve of the US invasion of Iraq in March 2003 the dictatorship organized a nationwide crackdown arrested and condemned 75 Cuban dissidents many of them Project Varela coordinators to up to 28 years in prison, which was the sentence handed down in a show trial to Luis Enrique Ferrer Garcia, a Varela Project coordinator; or 25 years in prison to his brother José Daniel Ferrer García, another local coordinator of the Varela Project and an independent journalist.

In this essay the focus has been on the Constitution and its totalitarian characteristics, but as referred to above with the Varela Project these constitutional articles have shaped Cuba's penal code. There are numerous laws that trample the fundamental human rights of all Cubans, but for the sake of brevity there will be a focus on three laws:

Oral and Written Enemy Propaganda

Article 103 of the Cuban criminal code states:

1. Any person who: a) incites against the social order, international solidarity or the communist State, by means of oral or written propaganda or in any other way; b) prepares, distributes or possesses propaganda of the type referred to in paragraph (a) preceding; shall be punished with one to eight years imprisonment. [...] 3. If mass communication media are used for performance of the acts referred to in (1) and (2) of this article, the penalty shall be seven to fifteen years imprisonment. [...]

The writer and poet Reinaldo Arenas observed that “The difference between the communist and capitalist systems is that, although both give you a kick in the cojones, in the communist system you have to applaud, while in the capitalist system you can scream. And I came here to scream.” Some might argue that this is a subtle difference, but I think it an important one. The ability to protest injustice is the first step to being able to remedy it. Freedom of speech and expression to express grievances is an essential feature of a free society.


Article 72. A dangerous state is defined as the special predisposition of a person to commit crimes, demonstrated by conduct that is manifestly inconsistent with the norms of socialist ethics.

Article 75. A person who, though not in one of the dangerous states specified in Article 73, by virtue of links or dealings with persons potentially dangerous to society, to others, and to the social, economic, and political order of the socialist state may be predisposed to crime shall be warned by the competent police authority as to prevent him or her from engaging in activities that are dangerous to society or criminal in nature.

Dangerousness is applied against poor and socially marginal persons as well as political dissidents. A recent victim of this law that drew international attention was a hungry and inebriated Cuban man who said on camera that he was hungry and that there is hunger in Cuba. His name is Juan Carlos Gonzalez Marcos but his friends know him as Pánfilo. He later retracted his statement out of fear, but it was too little too late and was charged with dangerousness and sentenced to two years in prison. Thanks to an international internet campaign he was released, but there are scores like him presently behind bars.

Law 88 "The Gag Law"

Human Rights Watch in their important analysis of Cuba's legal system in 1999: Cuba's Repressive Machinery analyzed the 1996 Law 88 which expanded restrictions on freedom of expression and association and increased prison sentences to 20-years. Many of the independent journalists, Varela project activists, and independent librarians arrested during the March 2003 crackdown were tried and sentenced under this law. All of them were identified by Amnesty International as prisoners of conscience. In 1997 the government organized a "forced" petition drive in which children who did not sign supporting this new law were harassed and in at least one documented case on April 7, 1997 a father who supported his child's refusal to sign the government petition was detained by State Security.

Freeing all of Cuba's political prisoners is a good first step, but unless these laws are changed and the constitution amended or set aside so that one without totalitarian elements can be the law of the land the prisons will once again be filled with prisoners of conscience.

This paper was first presented on October 13, 2009 at a public discussion on Constitutional Reforms and Democracy in Latin America at
1 p.m. at the Goethe-Institut in the Large Hall, Masarykovo nabrezi 32, Praha 1

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