12 agosto, 2018

Cuba is facing the possibility of expressing its opinion yea or nay regarding a new text for a constitution which has not come about -as it should have been- from a constituent assembly freely elected by all the people to be then submitted to a referendum for final approval or rejection. Now we will have the opportunity to take advantage of the space provided for all amendments to be heard from each and every Cuban, coming from both lungs of the single Nation we make up: the Island and the Diaspora, and to participate freely, responsibly and creatively, in the debate to be able to contribute our vision and proposals: modifications, additions or deletions. We believe that participation implies more than not covering the space we may have.

Despite the limitations in the origin and debate of the constitutional project, we believe that we must exercise the most elementary right and duty of citizenship: to express our opinions in view of this new text proposed to us.

A true Constitution must be:

1. Inclusive, that is, that it shall not exclude any Cuban cititizen in the Island or in the Diaspora, including the vote by Cubans living outside the Country, nor discriminate on account of any political, racial, economic, cultural, social or religious reason, nor due to gender or sexual orientation, or because of any reason inherent to the nature and dignity of a human being. This means that one cannot impose or declare as irrevocable any specific ideology or option, be it liberal, socialist, Christian Democrat, or any other model, even if it were preferred by the majority, as it would leave out minorities -placing those who think differently- against the republic. To select as exclusive a political system, regardless of which it might be, would penalize a sector of society ahead of time, outlawing differences of opinion in the process. It would be akin to declaring a religious denomination or any other form of individual or group option as the official one in the constitution.

2. Pluralistic, that is, it should recognize all diversity in society. This means that the constitution should establish, as the supreme law, the institutional framework and recognition of the legal personality that guarantees equality of opportunities under the law to all the various peaceful, religious institutions, social organizations, labor unions, different forms of property, association of every stripe in civil society, as well as a range of political parties and civic movements which would equally allow the majority and the minority to freely organize, integrating to participate fully and as a group in the political, economic, cultural, religious and social life of the country. A multi-party system is the organic manifestation of the pluralism inherent in social coexistence. The recognition of pluralism, an indisputable structural condition of the human person, of nature and of any and all societies, is an eminent form of social justice and integral humanism. The official designation in the constitution of the existence of a single party, of a sole religious institution, of a singular type of civic organization -even if all were peaceful and respectful of the common good– would penalize beforehand a sector of society- by outlawing other kinds of organizations and/or parties that had declared their aim of contributing to the good of the whole Nation. It would be similar to the constitution selecting, for example, a single rhythm as the sole expression of Cuban music.

3. Consensual, that is, as in a social contract, a supreme covenant, a model of a “republic with room for all” as stated by José Martí on October 10, 1891. This assumes not only the final approval or not of the Constitution, but also direct or representative participation in the drafting of the initial text. It also implies the existence of means to freely and effectively add modifications and the creation of a legal framework, in other words, of a package of complementary laws that would allow for the correct, coherent and ancillary application of the Law of Laws. A constitution is an agreement by which the whole of society freely elects its models of peaceful coexistence based on the foremost condition of a human being, which is the legal recognition of the effective guarantee of his/her inner liberty and freedoms, in order to be able to reach the greatest possible degree of humanism and the highest degree of coexistence with brotherhood and “civic friendliness” the pillars and bases of any human community. Ignoring this contract or manipulating it in favor of a social group, party, person or sole ideology, would be a crime against the supreme dignity of any person and the inalienable rights of each citizen. Nobody or anything can be placed above the Constitution, if and when it has been drafted, discussed and approved freely and legitimately. To say that the Constitution of a Republic cannot set down directives to a party which would be above the Supreme Law is not only a contradiction in principle, but also legal folly. This would not only mean the violation of the peaceful coexistence of an agreed-upon framework, but it would also open the door to chaos, violence and death. And this is no exageration keeping in mind that Article No. 3 of the Project stipulates that armed struggle may be utilized to combat those intending on changing the political order that this Constitution would establish. The recent past is full of multiple examples to this point. To look the other way is tantamount to voluntary civic and political blindness and constitutes a grave irresponsibility.

4. Democratic, that is, one that sets up a coherent general legal framework that organically guarantees the Rule of Law, with its inalienable properties: respect for all human rights for all with the inclusion in the constitution of all International Covenants regarding civil, political, social, cultural and environmental rights that have been approved by the UN which Cuba has signed but which need to be ratified by their inclusion in the text of the constitution. The Rule of Law also guarantees: the supremacy of the law over any and all persons, institutions or branches of government; the division and mutual, effective control of the three branches of the State: legislative, executive and judicial; a plural, free, transparent and internationally verified electoral system; a constitutional guarantee of defense mechanisms for human rights and transparency in governmental branches and public administration, for example: Ombudsman, Government Accountability Office, Court of Constitutional Guarantees, and independent human rights organizations. A representative and participatory democracy in search of the greatest and most effective citizen participation, be it directly or indirectly, is an eminent form of social justice and integral humanism. Ignoring the standards which the international community considers as qualifiers for a truly democratic system, fruit of centuries of thought, struggles and legislation within the community of civilized nations, would be to deny the development of humankind. Ignoring and discarding the teaching of eminent jurists from all political and religious leanings, would be akin to denying our own history and culture, very rich in its contribution to constitutional jurisprudence, going back to José Agustín Caballero, Father Félix Varela, the Assemblies of Guáimaro, Jimaguayú and La Yaya, and the constitutional delegates of 1901 and 1940. All of this was kept front and center during the drafting of the Constitution that emerged from the inclusive, plural and democratic Constitutional Assembly of 1939, with the participation of delegates elected freely and directly by all of the people, including, of course, delegates of the Popular Socialist Party, the communist party which participated in its drafting. This only takes place when the nature of the text of the constitution is the most inclusive, pluralistic, democratic, and socially just that is humanly possible.

Let us hope that the haste with which the drafting Commission has been constituted, as well as the approval of the Project and the time allowed for debating this new text of the Constitution, in addition to the error of it not having been composed by a pluralistic constituent assembly, may not become unsurmountable limitations for these four pillars of any Constitution: consensus, inclusion, pluralism and democracy to be recognized and stipulated in a new law of laws respecting and having in mind all the contributions that have been presented or will be presented both in the Island and in the Diaspora.

The Centro de Estudios Convivencia (Center of Coexistence Studies) worked ahead of this stage having published its vision and proposals, with contributions from the Island and Diaspora, for a Constitutional Transfer: from law to law, and has additionally made known a legal framework with a package of 45 complementary laws which will facilitate a concrete application of the supreme text. (Cf. In the next volume of our journal we will publish a comparative study between the Project presented by the State and our proposals.

At the end of the day, the citizenry, every Cuban men and women, regardless of where we live, or how we may think, believe or opine, we are the sole and legitimate sovereigns. Our greatest wish is for that sovereignty to be able to be expressed freely and responsibly. And nothing or nobody may ascribe unto themselves the right to be above the people’s sovereignty.

All of us have the last word. Or we should have it and exercise it.

Pinar del Río, August 4, 2018