By Osmel Ramirez Alvarez
HAVANA TIMES – According to Wikipedia, “rule accordiung to higher law” is a State that is governed by a system of laws and institutions that are structured around a constitution, which is the legal foundation of every authority and official, who are subjected to the laws of this constitution.”
It differs from “personal dictatorships, where the dictator’s wishes are imposed without compulsory regard for the Law.”
In a Rule of Law, “laws organize and define the limits of rights, in which every action is subject to a legal provision that has been approved in the past and is publicly known.” However, “rule of law shouldn’t be confused with a democratic state, even though they both normally come about at the same time. This definition of rule of law is called the “weak version” or “formal version”.
I think it’s a very good definition. And it’s very helpful for us to understand the concept of “Socialist Rule of Law” which has been repeated throughout the draft Constitution that is now being tweaked to create the final draft. Which is clearly trying “to wipe away” the authoritarian character of the Cuban political system, “the Revolution” and “dress it up” in a legal guise. If only they really were wiping away every anti-democratic trace from the Constitution!
It’s a way for them to legitimize the Cuban Communist Party’s absolute power in our society, which is clearly expressed in Article 5. This new Constitution has been designed to give an impression of “legality”, of progressiveness, and it is nothing but a more comprehensive version of the former, treating basic rights in an even more ambiguous way.
As stated above, under the concept of Rule of Law there is a weak or formal version as well as a strong or material version too. The first implies exclusively abiding by the Law and the second goes one step further, involving the content of the Law. The general concept has been expressed in the following five points:
- Different state bodies need to be created, and they must each assume one of the State’s functions.
- These state bodies need to act independently.
- The way that heads of each of these bodies are nominated needs to be clearly established, and the formalities and procedures to finalize their terms in power too.
- Power needs to be institutionalizaed and not personalized.
- Legal provisions, as well as the authorities that apply them, need to respect, promote and consecrate basic rights that stem from human nature.
To ensure the weak version of rule of law, the first four conditions would need to be met, while the fifth condition is typical of a strong or materialized version. Point 5, which is made void by Article 5 in our constitution, can’t be met if basic human rights are being violated. The following fundamental rights are still being violated in Cuba, such as:
- The right of popular sovereignty, because by placing a political group above the State and Government, this becomes void and is just empty rhetoric.
- The right of “non-Communists” to have political freedom and real rights to participate in national politics.
- The right to a real and legal civil society which can assume the important role it needs to play in society, without being faced with hurdles.
- The right to real democracy, which implies direct and plural elections of every public power in the country.
- The right to freedom of speech.
Clearly the Socialist Rule of Law that they are trying to sell us with the new constitution is just the poorest and most shallow version there is. It isn’t far off being a mimetic version. As far as I understand, a real Socialist Rule of Law needs to be the strongest and materialized version first and foremost: that gets rid of any authoritarianism or tyranny, is based upon a representative and participatory democracy, and respects every human right. And secondly, it needs to have a strong social focus.
Today, the Cuban political system falls under the category “neo-presidentialism”. These regimes are where the executive power has supremacy over the rest of national powers. They are defined as such because the Head of State, who is also the head of government, not only has more powers and responsibilities than other powers (legislative and judicial), but it can even be in charge of them. This creates an imbalance in power or a lack of separation of powers and the role of counterweights is broken or don’t exist.
Today, the figure of President of the Council of State and Government embodies the Head of State and Government in one person alone. These will be separate in the new draft Constitution, although the Head of State’s supremacy over the Head of government, which in this case is the Prime Minister, is upheld and forms part of this democratic simulation, in my eyes. It would be a lot more practical to define a group of ministries for each and every one, as a counterweight, and the President be elected by the people while the Prime Minister is elected by Parliament.
Karl Lowewenstein, considered to be one of the founding fathers of modern-day constitutions according to experts, says that “neo-presidentialist regimes are a kind of totalitarianism dressed up with democratic elements (elections, comptrollers, etc.)” And according to him, “these (democratic) elements are just a strategy employed to prevent emphasis on their totalitarian nature.”
I agree with him 100%. This is the foundation that the Socialist Rule of Law rests upon, which proposes rule of law in a formal sense, but is being imposed on us in practice. We won’t gain anything from it at the end of the day because it doesn’t step up democracy, nor does it protect human rights, and it definitely won’t resolve the country’s economic and social problems. The name is very interesting, I even like it, but it is essentially negative during this controversial time of constitutional reform.