Cuba: A constitution for the future?

10-04-2019

Photo: © Granma

José Chofre Sirvent. University of Alicante

After an eight-year drafting process, the new Cuban constitution was endorsed by the people on February 24^th. It will be enacted on April 10^th. At the 6^th Congress of the PCC in April 2011, Raúl Castro Ruz, First Secretary of the Communist Party of Cuba (PCC), announced the implementation of an eventual amendment to the constitution, saying that this was part of the legal modifications required to accompany the economic update.

In April 2018, Raúl Castro announced the concrete beginning of the constitutional reform clarifying that with it “We do not intend to modify the irrevocable nature of socialism in our political and social system, or the role of the Communist Party of Cuba, as the organized vanguard and leading force in society and the state, as established in Article 5 of the current Constitution, and which we will defend in the next”.

Within this reference framework, the new Cuban constitution essentially maintains its coherence with revolutionary principles. Changes in the new constitution include, among others: the election of the president of the republic by the National Assembly of People's Power; abolition of the Provincial Assemblies of People's Power and their replacement by a Provincial Council headed by a governor and deputy governor; recognition of the autonomy of municipalities; recognition of the Office of the Comptroller General and the National Electoral Council as new constitutional organs; recognition of women's sexual and reproductive rights and their protection from gender-based violence; extension of the catalogue of rights such as the right to information and to access personal data; recognition of various forms of ownership that co-exist with state ownership, including cooperatives, joint enterprises and private property.

But the multiple changes introduced to its articles in different subject areas do not alter its constitutional structure. The main pillars remain the same. The principle of unity of power, which is the essential core of Cuba's revolutionary constitutional tradition, and which manifests itself in People's Power (the way power is organised in Cuba) remains intact. However, some “incoherence” can be seen with the inclusion in the frontispiece of the constitution with the recognition for the first time of the category "Rule of Law" (art.1). This has always been considered a taboo for socialist constitutionalism, with Marxists attributing it to bourgeois thinking and historically disparaging, ignoring and even vilifying it. Time will reveal the extent to which this recently reviled clause is developed.

Cuba remains an exception, despite the approval of this constitution. It is distinct even in terms of Latin American constitutionalism. Cuba's constitutions – the 1976 version that underwent partial reforms in 1978, 1992 and 2002, and the 2019 one – show no influence from the countries that surround it. Thus far, Cuba has been unable to transfer its constitutional model to any other country in the Americas, and none of the nearby models with ideological affinities to Cuba have managed to influence the new constitution. Cuba retains its own unique character.

The roots of Cuba's current model of constitutionalism lie in countries that are structured under the Marxist-Leninist aegis. This harmony overcomes vast geographical distances. The 2019 Cuban constitution is the last socialist-inspired constitution whose language retains a Soviet influence. The preamble clearly shows this when it refers to communism, to the exploitation of man by man, and to proletarian internationalism, expressions that did not appear during the drafting, but which ended up being included in the definitive constitutional text.

The great challenge the new Cuban constitution faces is to guarantee its supremacy and become a genuinely “normative constitution”, and thereby bring about the direct application of its norms and principles. This is a very long-term task of great magnitude, given the devalued role law plays in Cuba in a structure based on a non-existent, or very weak, legal culture. Previously, the Cuban constitution had merely been a reflection of the deep-rooted "legal nihilism" on the island. But following the enactment of the 2019 constitution, a process of transformation begins that faces enormous difficulties and obstacles that will need to be removed and structural deficiencies that will have to be fixed in order to move towards the progressive configuration of a “normative constitution”. This should be the true meaning of the new constitution. No more and no less.