Cuba’s 1940 Constitution Would Give Us the Rights We Need


Osmel Ramirez Alvarez

Dimness. Foto: Juan Suarez

HAVANA TIMES — Taking a look at the 1940 Constitution, I came across some very interesting things. The rights and democratic headway we lost in 1952 to be exact, which is what the Cuban people need today. Fidel didn’t attack the Moncada barracks, found the 26th July Movement, write the Moncada Program, fight in the Sierra Maestra and win over a large part of the population who followed him until the Revolution triumphed in 1959, to reestablish this Constitution in vain. Nearly eight decades after it was published, it continues to be almost perfect for Cuba today.

If we want a Constitution which guides us towards becoming a better, freer, more democratic, fairer and more equal country, then we don’t have to look any further: let’s take the 1940 Constitution and make a few adjustments so that it suits our situation today. These might be on certain points such as the political-administrative division of duties, today’s concept of marriage, maybe making the parliament we have unicameral and such like. However, the majority of Cuba’s problems would be resolved under this Law of Laws, especially when it comes to human rights and the democratic guarantees it includes.

After examining some of its articles, I don’t really need to analyze them. Let me cite a few:

Art 26. The penal process law shall establish the necessary guarantees so that all guilt shall be proved (…). All accused persons shall be deemed innocent until found guilty (…). Persons under arrest, and political or social prisoners, shall be detained in separate jail facilities from common offenders, and shall not be subjected to any labor or to the penal regulations for common prisoners. No person under arrest or imprisoned shall be held in solitary confinement. (…).

In today’s Cuba, political prisoners are sentenced like common prisoners and a separate prison doesn’t exist, which is deliberate so as to punish them. Dissident journalists, artists and members of the opposition are arrested at the government’s whim and we are imprisoned without any charges against us for several days or weeks, without the rights which offer us protection. And even with this going on, our Attorney General assured everyone in Geneva that due process exists here in Cuba. If it didn’t make us feel ashamed and sad, it would make us laugh.

Art. 27. Every detained person shall be released or delivered to a competent judicial authority within twenty-four hours following the act of his detention. Every detained person shall be released from custody, or committed to prison by a judicial writ, within seventy-two hours after having been placed at the disposition of a competent judge.  Within this same period, the detained person shall be notified of the writ issued. Preventive imprisonment shall be maintained in different places and completely separate from those designed for the serving of sentences, and persons kept in said preventive imprisonment may not be subjected to any labor or to penal regulations designed for persons serving sentences.

None of this must exist in our current laws, at least not explicitly, because it’s a well-known fact that the complete opposite happens. With a constitutional mandate like this one, State Security would lose their prerogative to violate human rights (which is the foundation of their work today), and would have to dedicate themselves to what other intelligence agencies do all over the world: protect the State from scourges like drugs, terrorism and foreign interests. Not from its own people who are only trying to rescue their usurped sovereignty.

Art. 28. There shall be no prosecution or sentence except by a competent judge or tribunal (…). No violence or coercion of any kind shall be practiced on persons in order to force them to testify. Any statement obtained in violation of this provision shall be null, and those responsible shall incur the penalties established by the law.

Art. 29. Any person detained or imprisoned under circumstances not foreseen in the Constitution and its laws, and without the formalities and guarantees provided by them, shall be released into freedom (…).

Interior Ministry Training Centers in every province, such as the Pedernales State Security correctional institution in Holguin (where I was kept for three days in November 2017), keep “suspects” in solitary confinement and in subhuman conditions for days, weeks and even months. In my cell, there was someone who had been there two months and I know about someone from my neighborhood who was kept six months. Then, he was let go because of a lack of evidence against him as he didn’t confess which is what they were after.

Art. 30. Any person may enter and remain in national territory, leave it, move from one place to another, and change residence without needing a security letter, passport, or other similar requirement, except for what is provided in the laws on immigration and the duties of the authorities in cases of criminal responsibility. (…). No Cuban may be expatriated or be prohibited entry into the territory of the Republic.

Pay phone. Photo: Juan Suarez

Everybody knows that after two years outside the country, Cubans need to repatriate themselves in order to be considered Cuban residents again. A monstrosity. Not to mention, the regulation of being free to travel abroad or visit Cuba being used as political blackmail or as a weapon against those of us the government deem to be troublesome.

These are just some of the articles that deal with civil rights and guarantees. This article would be too long if I were to also include the articles which ensure a real democracy with separated powers and free and plural elections. Which we could even improve, but never mutilate like the triumphant Revolution’s “Fundamental Charter” did when it was established instead of what they had promised which was to reinstate the 1940 Constitution.

Now, Raul Castro is heading the constituent committee to adjust the 1976 Constitution to his new plans. The best legacy he could leave behind in the last years of his life would be to reestablish the real Constitution he fought for, the 1940 Constitution. Which served as an excuse or stimulus, in the best of cases, to fight against Batista’s dictatorship and come into power six decades ago. A power which wasn’t what Marti dreamt of “for everyone and the wellbeing of everyone”, even though this is the heading of the document they now want to reform.

2 thoughts on “Cuba’s 1940 Constitution Would Give Us the Rights We Need

  • Why do the comparisons have to be with the US? There are over 200 countries in the world! How many political prisoners do you have locked up in the US currently Phil Hughes?
    If it wasn’t so serious, your statement that: “today’s Cuba isn’t perfect” would be laughable. You obviously manage to mentally avoid consideration of the persecution, repression, denial of freedom of expression (illustrated right now in Havana Times with Fernando Ravsberg and Osmel Ramirez Alvarez) and jailing of parents for teaching their own children in their own home anything that is contrary to communism.
    American citizens may at long last be wakening up to the need for a complete review of their much cherished constitution which for example leads to some 12,000 of their citizens being shot per annum, but here is not the place for such discussion. Here is the place for discussing Cuba and the Latin Americas. As Canada for example provides far more tourists to Cuba than the US, maybe it should take precedence?

  • Some of the items in the 1940 Constitution would be nice to have in the U.S. I like separating political prisoners from “common criminals” but there is a lot more. Clearly today’s Cuba is not perfect but why do we ignore comparisons with the U.S. For example, Jimmy Carter was once asked (I think this was after Chavez’s last re-election in Venezuela where Venezuela passed with flying colors) how the U.S. election process would stand up to the Carter Commission standards. He said the U.S. would fail miserably.

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