EDITORIAL #65: THE DRAFT CONSTITUTION: THE NEW, THE OLD, AND THE NECESSARY

“… people never pour new wine into old wine bags”

(Matthew 9:16 )

During these months Cuba finds itself in the midst of a process of constitutional change. The reason being put forward for change is that the Constitution of 1976, having been modified several times, has become obsolete, reality having overtaken it. The need to adapt to internal and external crossroads has caused it to in fact break down, or for it to be ignored by the force of the pure logic of historical developments.

The world has changed and Cuba finds itself stuck in a past that doesn’t work. The changes that the Nation requires are not limited to the drafting of a Constitution. We have fallen so far behind the world that, after 60 years of totalitarianism, of voluntarism and social experiments, of State paternalism and lack of freedoms, an anthropological damage has been produced, which is the largest and worse sequel of this type of system.

The inside of the human person has been injured. Teaching has been directed to the development of “the new man” and an “impoverished man” has been the result, one who doesn’t know what to do with his/her inner liberty, who lacks the force of will, who doesn’t have emotional education, who doesn’t think with his/her head or who conceals their thoughts, who does not believe in their own capabilities or in human betterment, living in pessimism and existential inertia, suffering from a civic and political illiteracy in the midst of a crisis of values.

That is why the changes that Cuba needs transcend any constitutional text, although they include a new legal framework.

However, the proposed Law of Laws that has been drafted by a small group belonging to a single political school of thought tries to put on makeup on an old structure, void and non-functioning with cosmetic elements that are unable to hide the wrinkles of obsolescence.

It is necessary, therefore, to deepen in the study and debate of the Project proposed by the government and to not remain fixated upon several articles about gender topics, for example, which have become the center of what should be a core and structural proposal. Let us provide some examples that could shed light on the global nature of the proposal:

The Old

We consider as “old” those proposals that maintain the essence of the overtaken 1976 Constitution after 42 years and a change in the zeitgeist of world:

The imposition of a so-called “Socialist rule of law” in the definition of the Republic (Article 1).
The irrevocability of this “socialist” model. This adjective, so as not to leave any doubts, is repeated 22 times in the complete text (Articles 3 and 224).
Legalization of “armed struggle” against “anyone” who “tries” to change the political, economic or social system. Attention: it doesn’t say against a foreign invader, “anyone” can be a Cuban resident (Article 3).
Enthroning the Communist Party of Cuba as the “supreme directing force of society and the State” (Article 5).
The four essential pillars of the old Stalinist and planned economic system are retained: “The socialist ownership by all the people of the fundamental means of production” (Article 20), “the planned direction of the economy” (Article 20), the “State Socialist enterprise is the main subject of the economy” (Article 26) and “the State directs, regulates and controls the national economic activity” (Article 27).
“Political diversity” is not included among the reasons why discrimination is explicitly prohibited (Article 40).
The control by the State over culture and artistic expressions “in conformity with the cultural policy and the law” (Article 90).
The control by the State over education: “the State orients, develops and promotes education, sciences and culture in all its manifestations” (Article 95). “Education is a function of the State, it is secular…” (Article 95h).
There is no separation of branches in the State, nor are there direct presidential elections, “the President of the Republic is elected by the National Assembly of the Popular Power from among its deputies” (Article 121).
There is no mention of either the abolition of the death penalty or of conscription for military service, or about the ratification of the Civil, Political, Economic, Social and Cultural Agreements reached by the United Nations which Cuba signed, nor are they incorporated in this constitutional draft as others that it has ratified (Article 17).

The New

Reinstatement of the posts of President of the Republic and of Prime Minister, Provincial Governor and Lieutenant Governor and Municipal Mayor. (Articles 120, 121, 135, 136, 165, 198).
Municipalities are the “primary and political organization, fundamental to the national organization” and have a greater administrative autonomy. The Council of Municipal Administration is approved with executive-administrative functions to administer the municipality (Articles 163, 196).
The President of the National Assembly, its Vice president and Secretary, are also, and at the same time, President, Vice President and Secretary of the Council of State, as a permanent organ of the National Assembly (Article 116).
The term of the post of President of the Republic is limited to two terms (Article 121).
Private property, personal, mixed or cooperative is constitutionally recognized (Article 21).
It becomes institutionalized that “the rights and duties recognized by this Constitution are interpreted in conformity with those international Treaties on human rights ratified by Cuba” (Article 39).
“The State recognizes, respects and guarantees freedom of thought, conscience and expression. No condition is placed on this in this article (Article 59).
The duty of moral, ethical and civic education is elevated to the constitutional level, reiterated three times in the text, something which in our Center for Civic and Religious Training (1993-2007) and in our Coexistence Studies Center (2008-2018) we have been working for during more than 25 years, not always understood or accepted. The text says: “education should promote the knowledge of the history of the nation to develop in the students a high level of ethical, moral, civic and patriotic values” (Article 95c) and parents have the obligation to… “actively contribute to their education training them as citizens with moral, ethical and civic values,” although it conditions all this “in correspondence with life in our socialist society” (Article 70). It additionally assigns the Communist Party of Cuba to work “to preserve and strengthen the patriotic unity of all Cubans and to develop ethical, moral and civic values.” (Article 5).
The concept of marriage is redefined instead of conserving its long-standing definition, and, additionally, the concept of “equal civil union” is not added, so that the State, which is secular, may be able to create the legal framework to be able to guarantee all the rights of coexistence between people of the same sex.

Up to here are the examples of the old and the new in this proposed Constitution of the Republic.

What is Necessary

In our opinion what Cuba needs and is truly new from the structural point of view is the following:

The reconstruction of the human person, to heal the anthropological damage caused by six decades of totalitarianism and lack of liberties. Let the Constitution recognize and sponsor the reconstruction of the Cuban family, a totally renovated educational project in which ethical, civil and political training will substitute for sectarian and excluding indoctrination; allowing for the moral, spiritual and educational contribution of Churches and other expressions of spirituality.
Reconstitute the fabric of civil society, to avoid that all the power of the State, regardless of its political leanings, may fall directly upon an isolated and defenseless citizen. Let the Constitution recognize and foment that civil society be a school for participation and democracy, of an experience in life in the community, a source of cultural, social, economic and political leadership, a mechanism for the defense of the rights of the citizenry and a source of creativity, proposals and civic projects.
A debate about the republic we want and need. May the Constitution be faithful to the roots of our founding fathers, Varela and Martí, within the best of our republican and constitutional tradition, in the values and virtues of the Cuban identity and culture.
May the Dogmatic Part of the Constitution be ahead of the Organic Part to highlight its primacy, full dignity and the protagonist role of the human being in all Cubans. Let this chapter recognize all the Rights and Duties in the International Agreements of the UN and may the constitutional precepts be interpreted in accordance with the spirit and letter of these treaties.
An organic model of the Rule of Law. May the Organic Part of the new Constitution consecrate the separation and mutual control of the three branches of Government: legislative, executive and judicial, whose structures will recognize and guarantee the four pillars of any and all democracies: liberty, inclusion, pluralism, and consensus. The creation of independent mechanisms for human rights, such as the Ombudsman and others. Creation of a Government Accounting Court and of a Constitutional Court.
The constitutional framework to adopt an Electoral System to be plural, inclusive and transparent to organize free and direct elections, with international monitors.
That the death penalty, violence, disqualification and all types of aggression, physical, psychological, verbal, by the media, moral or spiritual be abolished forever, and that principles of non-violence, peace and fraternal coexistence and the sacred character of life be consecrated by the Constitution as the ways for social relationships to be the most coherent with our historical, cultural and religious roots.
Abolish everything that attempts against pluralism, inclusion or democracy. May it never return to Cuba, and for it to be punishable, any type of totalitarianism, authoritarianism, caudillos, populism, perpetuation in power, or exclusive hegemony from an ideology or party, regardless of who it is.
May the new constitution adopt a scale of values in which the human person is the subject, the summit and the end, never more a means. Let the family, the school and the churches and other organizations of civil life be recognized, following this order, for their role in the coexistence, education and holistic human development of all Cubans, those in the Island and those in the Diaspora.

Many other specific needs could be enumerated, but here we are about contributing to the public debate with our considerations regarding the old, the new and the necessary for Cuba at this juncture in the constitutional journey. For it we once again recommend our Second Report of the Center for Coexistence Studies: “Legal Framework and Constitutional Journey, from the Law to the Law” (II Informe del Centro de Estudios Convivencia: “Tránsito Constitucional y Marco Jurídico: de la ley a la ley”)(https://0d3.5f8.mwp.accessdomain.com/category/propuestas/propuestas-marco-juridico). In this Report from the CEC, written by Cubans from the Island and the Diaspora, can be found, not only proposals for a new draft of the Constitution but also, additionally, a package of 45 complementary laws that would help to implement a new Law of Laws for Cuba.

We hope and wish that all sectors of the Cuban nation: those in the Island and those in the Diaspora, regime supporters and opposition members, educators and artists, religious, agnostics and atheists, government workers and those in the private sector or freelancers, governmental centers of study and independent ones, all male and female Cubans, not get distracted with some of the details or only some of the articles, but to rather think about Cuba with a wide view, with our intelligence awakened, with a serene heart and with a firm will for inclusion and the building of consensus.

And thusly, we, all the people of Cuba, invoking God’s favor, will feel we are truly sovereign over our new Constitution.