Suggestions from attorney Miguel Angel Palencia Hernandez
By Vicente Morin Aguado
HAVANA TIMES – Against all odds, Cuba’s draft constitution has caught the attention of its citizens, a country where there are plenty of displays of frustration. As the saying goes: hope is the last thing you lose. Are we really novices in constitutional laws? We speak with attorney Miguel Angel Palencia Hernandez.
Miguel Angel Palencia Hernandez: Cuba swells with pride about its productive path in the field of law, backed by seven constitutions in its short history, ever since the beginning of the Independence wars. Unfortunately, under the heavy influence of absorbing Cuba fully into the Socialist bloc, our last Constitution (1976) was saturated with content that resembled a political declaration more than a constitutional doctrine.
HT: Your suggestions are not in the slightest bit flattering for the team, designed by the Communist Party, that drafted the new constitution.
MAP: From the very beginning, there has been great controversy: popular sovereignty o single Party supremacy? The Cuban Communist Party’s (PCC) pre-eminence is declared in Chapter I (Political Foundations of the State), while popular sovereignty, the essence of every democracy, appears in the background in Chapter VI when the State’s structure is established.
HT: A beginning far-removed from constitutional law…
MAP: If we take Latin America as our basis, some constitutions start off by defining the kind of State it has, its characteristics and government, while others establish its citizens’ rights. The Cuban proposal follows this tradition to some degree, but from the very beginning (Article 3.) it sets out a flawed dilemma: “the defense of the Socialist Homeland.”
The term “socialist” needs to be removed and Homeland should just be left as it is. The homeland is the mantle that covers all of us: the honest citizen, the dishonest citizen, the religious citizen, the atheist, the socialist and his opponent, the resident and the emigre. And the call to defend it applies to all of us, no matter where we are, what we believe, what we do. Were Marti, Maceo, Gomez, Fernando Ortiz, Lezama, Lam and many others, socialists?
It gives us the impression that they were in a hurry to write it up because in the second paragraph of the same article, “treason against the Homeland” is mentioned without the socialism: “Treason against one’s country is the most serious of crimes; those who commit it are subject to the most severe penalties.”
HT: Therefore, it isn’t an exception.
MAP: And there’s more, like establishing every public servant’s obligation to follow and enforce the law, without considering the same thing for PCC leaders, its related organizations and other lawfully established associations. The law applies to everyone.
HT: However, the draft Constitution’s writers have the 1940 Constitution as a reference, which they have suspiciously been hushed up about.
MAP: A Constitution second to none in Cuba. For example, workers’ compensation is a core issue for any socialist government. Quoting from Article 76., they have reproduced the Marxist precept “From each according to his ability, to each according to his needs.” Followed by “Everyone receives equal wages for equal value of labor.”
What is equal value of labor? Today, a direct employee that manufactures or another administrative worker can earn double or triple a doctor’s wages, any professional’s wages, but does that mean that their labor has greater value? I accept the 1940 Constitution’s prescript more: Article 62. For equal work under identical conditions, an equal salary shall always be paid regardless of the persons doing this work.
HT: A minimum wage isn’t set out, although the subject, along with the establishment of a national currency, is being publicly debated.
MAP: Seventy-eight years ago when Communists Blas Roca and Juan Marinello were constitutional delegates, removed from the reigning political power, they stipulated: Article 61. Every worker, manual or intellectual, in public or private enterprise of the State, Province, or municipality shall have a guaranteed minimum salary or wage, which shall be determined in keeping with the conditions of each region and the normal necessities of the worker, from material, moral, and cultural considerations, and considering them as the head of the family.
HT: Progressive precepts, better than those captured in the last Constitution?
MAP: There are some in spite of new and inexplicable errors, omissions and details, the origins of which have been implied: One article speaks of: “The freedom of every citizen to change religious creeds, or not to have any…” Great, but there is no need for the negative, the crucial thing here is “the freedom to”.
Another very important article legally abolishes any form of discrimination. I would change the phrase “religious creed” and just put creed in by itself, beliefs exists which aren’t religious. The Constitution should be the highest expression of the law and legal culture, as well as the melting pot of our languange. There are so many unnecessary repetitions of terms which impoverish our legal terminology.
HT: Allow me to suggest that in this article regarding discrimination, it needs to define “ideology and political opinions”, legally banning any reigning intolerance and, not to exhaust your suggestions, but there are also omissions which should never be missing from any Carta Magna.
MAP: No citizen holding a management or an official position in State bodies, such as judges and prosecutors, should be able to be elected as a legislator or delegate. The National Assembly of People’s Power is the highest ruling and legislative body, therefore, you can’t be a judge and a member of this at the same time, you would lose objectivity and impartiality.
Also, if you take into account every citizen’s right to ensure constitutionality, there needs to be a permanent body that monitors the supreme legal power, made up of jurists appointed and approved by the Assembly.
HT: There is still a huge dilemma, we have to vote for the Constitution as a whole, sacrificing super controversial aspects such as the single Party’s supremacy or the legal union between two people of the same sex. How can we resolve this dilemma?
MAP: In such cases, both ruling alternatives should be voted for separately, counting the votes and going with the majority.
HT: There are still so many suggestions left, this interview needs to be continued…
Vicente Morin Aguado: [email protected]om