Constitutional Order and the Cuban Constitution (I)

By Dmitri Prieto

“Any legal constitution is no more than a product of revolution. In the history of classes, revolution is the creative political act, while legislation only expresses the political survival of a society.  Legal reform does not possess its own impulse, independently of revolution, but rather in every historical period it moves in the direction guided by the thrust of the preceding revolution and over that time that the impulse lasts.  Stated more concretely: It only moves within the context of the social order established by the last revolution.” – Rosa Luxemburg

Recently, a bit of a controversy was initiated in Havana Times concerning an article titled “Respect for Constitutional Order” by our friend Erasmo Calzadilla.  Here I only wish to clarify a few points.

Indeed, the currently-in-force socialist Constitution of 1976 was approved that year through a popular referendum – the only referendum in the history of Cuba.  Prior to 1976, Cuba traversed a period of constitutional “provisionality,” after which it was governed by the “Fundamental Law” adopted by the Council of Ministers in 1959 (based on, but not at all identical to, the Constitution of 1940).

By virtue of this, that council (or what is the same as the “Revolutionary Government”) assumed the legal authority of the legislature (what was previously the Congress) and constituent body (for which previously a special procedure was needed).  This power had already been conferred to the Revolutionary Government by the Supreme Court of the Republic by virtue of the revolutionary victory itself, when Batista fled the country on January 1, 1959.

This provisional period of was quite different from the recent constitutional experiences in Venezuela, Bolivia and Ecuador, where transition took place in accordance with the legal requirements of the previously existing governmental structures (through presidential elections and constituent assemblies).

One must not forget that an armed insurrection triumphed in Cuba and where one of the slogans in the first years of the revolutionary period declared “Revolution! Elections for what?  We’ve already voted, we’ve already voted for Fidel!”  In fact that revolutionary act is what the Supreme Court took as the basis for transferring special powers to the government, which the latter continued to exercise until 1976.

That year no constituent assembly was convened.  Instead, a specially appointed commission approved the restructuring initiative, which had been analyzed in the first Congress of the Communist Party of Cuba and subjected to popular vote, where it obtained – according to official sources – a sweeping 97.7 percent majority.

Prior to this, a group of important laws had been approved by the government.  Likewise an experiment was carried out in Matanzas Province to clearly demonstrate how the Assemblies of Delegates and other bodies of  “Peoples Power” (the official name of the Cuban representative bodies) would function would function.

The Constitution of 1940 was, according to some, the second most legendary legacy of the Cuban nation (with the first having been the figure of Jose Marti).  That document was based on ideals and social-democratic principles, and was one of the most progressive in the Americas.

Roque Dalton had said, “Every country of Latin America has one of the most advanced constitutions in Latin America.”  In fact, many provisions in Cuba’s 1940 constitution were not put into force, and the document – an expression of the great hopes of the Cuban people – was effectively nullified because the oligarchy that dominated the Congress and presidency was uninterested in approving the constitutional provisions’ enabling legislation.

As a professor of constitutional law, I sometimes feel jealous of other judicial fields; I know that, despite its importance, my branch of law turns out to be of little use to graduates.

In Cuba there exists criminal, labor, administrative, military, and civil processes, etc., but there are no constitutional judicial processes.  The reason?  According to Dr. Marta Prieto, a professor at the University of Havana and one of Cuba’s leading constitutional authorities, our constitution is a program or set of principles, and not designed for direct application.

This means that the Constitution is not usually invoked in the courts, but is applied through other laws.  According to Dr. M. Prieto, it is necessary to develop mechanisms of control of constitutionality in Cuba (or to use the existing bodies that can serve for it, such as the Public Prosecutor’s Office in the defense of civil rights).

And in Cuba there does not exist a Constitutional Court, nor an entity such as an ombudsman, or what in Latin America countries is called a public defender (defensoría del pueblo).

To be continued…