Constitutions and Democratic Change in Cuba

By Osmel Ramirez Alvarez

HAVANA TIMES – Constitutional projections for democratic change in Cuba is a subject that is becoming more and more frequent in what could be called “the Cuban debate”, challenging intellectuals’ wit, the legalist spirit and even the pragmatism of those of us who think about Cuba. We can see how different options are being considered, from different standpoints.

What does the opposition have their sights on?

Up until now, we have been able to pick up on two clear standpoints within the opposition. On the one hand, you have supporters of the 1940 Constitution. On the other hand, you have the rest who prefer to begin a constitutional process that will lead to a new Carta Magna. They envision it as being as democratic as the 1940 one, but more in keeping with today’s reality.

It’s easy to see that both of these movements would stem from the moment democratic change arrives. However, they don’t foresee how this situation they long for will come about. Nor how the constitutional situation will be handled during a transition process. A process that could be short-lived, or maybe not so much, depending on the circumstances it happens in. There is no doubt that this will also involve the Constitution.

What about government-led constitutional reform?

It’s clear that change isn’t the road the PCC’s authoritarian regime wants to walk down. They have just carried out a constitutional process within their controlled legislative framework. The idea was to tweak the Constitution to the country’s new economic, social and mostly political reality. It has rather been a product of the inevitable transfer of power from the historic generation to the new leaders they’ve handpicked.

To date, there is no sign the regime is interested in leading spontaneous democratic change in the country out of pure altruism and patriotism. But it’s not something we can take off the table, either. This might even be feasible if external pressure and the opposition itself didn’t only focus on destroying them.

In such a landscape, it’s worth highlighting the fact that the current Constitution will be the protagonist for change. At least in an inevitable transition to democracy process, with inevitable constitutional and law reform, of course. More of the latter than the former because, if we take a closer look, laws uphold the system more than the Constitution in reality. It’s quite a general document, that leaves a lot up to lawmakers, meaning that it opens up the doors for change.

What are the best options?

If change were to fall into our laps overnight, you don’t have to give it much thought, the 1940 Constitution could be the most practical life raft. Getting a general consensus wouldn’t be so hard. However, it would demand a small, but very important, reform of the little details that contradict modern times, and those that would have clearly evolved since it was written.

The only drawback would be getting the Cuban people to adapt to it. That’s because it’s a legal framework that Cubans have no idea about, as they have never lived in a democracy. Nor will they understand a bicameral Legislative power or a completely different justice system, so quickly.

Writing up a Constitution so early on in this transition process would be quite counter-productive. We are a people who lost its civic, political culture several generations ago. We wouldn’t be ready at all for such an important and decisive task. A democratic and fair Constitution requires clarity and political organization. Moreover, it must be overwhelmingly representative and inclusive of every national interest.

It would be a variant that can’t be ruled out. However, it would happen in the post-change period, if it were necessary. Maybe three, five or ten years later, after we mature a little more politically and as citizens. And of course it the 1940 Constitution doesn’t end up fitting in with our new reality.

During this process of change, we could even agree or stipulate that a referendum be held so that the Cuban people can decide if they want a new constitution or to keep the amended and updated 1940 version.

Is there another possible alternative?

There is another possible alternative, where change could come in a more gradual and controlled manner. That could be if the government itself forged an agreement with the opposition, or a group within the opposition. Thus far, the government believes it can survive without giving in and refuses to allow a better social pact. However, things can change and this could be a perfectly viable option.

In this scenario, the Constitution that would be responsible for change would be the current one. It isn’t impossible for the current Constitution to become an instrument for real democratic change. But our politicians would need to want this.

Read more from Osmel Ramirez’s diary here.