Interview with attorney and law professor Michel Fernandez
By Milena Recio (OnCuba)
HAVANA TIMES — In recent years, the legislative sphere has been one of the most active as a result of the transitional process undertaken by Cuba through the “updating” of the economic model impelled by the government. New norms have been established to enshrine popular aspirations that had been postponed for years: advantages for the usufruct of lands, the authorization of self-employment, the right to purchase and sell real estate and vehicles, migratory reforms and an opening to foreign investment.
Many new norms still need to be passed, others still await updating and the number of prohibitions must be reduced. To name only a few, these include a Cinema Law, being impelled by that sector (and still unaddressed), a communications or press law, about which we know nothing, a Family Code that has been waiting to see the light of day for years and will recognize same-sex couples, among other things, a telecommunications law which was promised but has not yet been passed and a new electoral law, which should arrive on the scene before the next elections for parliamentary representatives.
The direction and scope of these legislative changes will largely depend on how the legislative process as such unfolds: on how democratic it will be and to what extent it will encourage or be based on the participation of citizens. Michel Fernandez, a lawyer and professor of legal philosophy at the University of Havana, is concerned about the current redefinition of legality in Cuba. In our conversation, we tackled controversial aspects of the legislative initiatives in the country and their current status.
Michel Fernandez: In the creation of laws, it is important for citizens to know about the laws being proposed, from the moment a government entity or institution feels the need to promote a new law. What for? So that, from the moment the idea arises, those interested in or affected by the proposal can participate in its creation and discussion, so that farmers can have their say if the law regulates land use, or artists can speak their mind if it has to do with artistic creation.
In short, it’s a question of having everyone participate. This makes for a more democratic process and yields better results, because, when people take part in the creation of the norm, they do not feel someone came along and imposed it on them, and you achieve something that doesn’t exist in Cuba, seeing the law develop naturally. The most important aspect of the law isn’t the juridical norm but its expression in daily practice. The best way to develop laws is to do so without conflicts. The alternative is dysfunctional, and the courts intervene when a problem arises.
If you took part in the process of creating a norm that affects you, if you approved of it, you feel more identified with it and know it better. Knowing the law is essential because there’s a principle that ignorance of the law does not exempt one from fulfilling it. Not knowing the law leads to violations of regulations that do not involve ill intent – one simply doesn’t know the law. When you have a huge normative apparatus like we do, with many norms regulating even the most unimaginable things, people cannot know everything and certain laws aren’t complied with. It is also crucial to publicize the law creation process more widely.
Some people believe that there hasn’t been much legislative activity in Cuba over time, but, in the last two or three years, this process appears to have intensified.
MF: We are seeing a process that’s advancing very quickly, because the so-called “updating” of the economic model entails the creation of new laws. Work groups, groups of experts that are closed and handle information that isn’t public, are created for the implementation of the Party Guidelines. These groups are responsible for making all of the analysis, making the political proposals and then proposing the pertinent legal norms. These norms are not public knowledge, not even in their draft stages, and remain concealed from the people who will be expected to comply with them later. They are known only after they’ve been approved.
How should the process work?
MF: A referendum is an exceptional mechanism. But, if a law is to regulate something to do with educational or scientific policy, these specific sectors ought to take part in the process, not only in the discussion of the bill, but well before, in the process of generating this policy.
When you take part in a process, you legitimate every moment of it and acquire more opinions about it. We should not ignore anyone’s opinion, no matter how unique that person is, because that may be the good idea we’ve never had. You can’t limit the debate on the basis of the notion that a certain group of people have the required knowledge or are the ones appointed by their organization.
In Cuba, we’ve been using a phrase that’s wielded as an argument to exclude people from the process, and I consider it misguided: “we are not making this known so as not to create expectations.” It doesn’t matter, do it from the start and you’ll see how rewarding the process can be. In the end, you can have something more substantial thanks to the participation of those who know. Technical and legal knowledge is important, but what’s more important is to have the experts involved in the actual activity participate. There are mechanisms that can be used to hold these public debates effectively.
What obstacles does the legislative process in Cuba face in terms of becoming a more participative process?
MF: The first step is the political decision as to whether the matter is subject to debate or not. For instance, the Labor Code entailed a broad discussion. But there’s another process marked by a sense of urgency, the need to get the law out there to be able to implement it. It is believed that people’s participation would delay or hold back the process, and that is a bureaucratic perspective. The bureaucracy sees popular participation as a problem. If more people take part in the process, they have to offer more arguments, devote more time to them, work harder, and bureaucracies tend to work against participative processes.
How many laws are being “cooked up” right now in this semi-secret way?
MF: Many. I’ve heard of a water bill, which isn’t public. There’s also talk of a new law that will modify the Penal Code, the Police Code and the Electoral Law, it’s so hard knowing what there is and isn’t! I’ve heard they’re working on a new draft constitution, but I wouldn’t be able to say how far along this process is. In Cuba, our experience dates back to the 1976 constitution.
There are many ways to develop a constitution. What works many a time is to present models that sketch out the broad lines of the document. What should never happen is for these processes to remain secret or under the control of certain groups of people, much less if you’re talking about the draft of a constitution in a socialist country that supposedly encourages participation. A process like that one and all legislative plans should be completely public.
If the legislation has nothing to do with State secrets but, on the contrary, deals with things that affect citizens on a daily basis, we have to respect the right of people to be informed and participate in the process.
Is it against the law to develop legislation in secret?
MF: No. What I think is that doing things this way goes against the ethical principles of the revolution, which proclaims that public officials must answer to the people. That said, it is interesting to know that, among the lower-ranked norms (decrees and resolutions), the ones that many a time tell us how the country’s juridical system is actually going to work, we do not have one that establishes how these must be developed.
There are procedures governing their circulation among entities, but there is no written norm that prevents what we see today from happening, that, because of urgency and the need to reform certain mechanisms, legal norms are approved without hearing the opinions of the administration or other ministries that will be affected by them, ministries that find out about the norm when it appears in the Official Gazette. This points to lack of discipline within the administration. And I know of concrete cases in recent years, particularly in connection with self-employment norms.
Was the norm governing the sale of cars [at outrageously high prices] an example of this?
MF: That’s a prickly issue for me. I was one of the people affected by this. I had a letter that authorized me to buy a car [at a below market price], a letter with a number, and I was waiting anxiously to be able to buy a car. My personal opinion, which I made public, is that it was an unconstitutional and immoral measure. It was going against rights that people already had, through retroactive legislation. In Cuba, the constitution forbids retroactive legislation, with the exception of penal cases, when it favors the person. In this case, it is clear that it did not favor people.
Was that complaint processed through any channels?
MF: We spoke of taking a lawsuit to the Council of Ministers, but we didn’t go through with it. That mistake’s on us, because there are legal mechanisms to demand our rights, but we seldom use them.
What does an ordinary citizen have to do to promote a law?
MF: The first thing a citizen has to know is that they can always do something, that they ought to feel empowered. In Cuba, there are indirect mechanisms in place to impel a piece of legislation. The citizen addresses their representative at the National Assembly (even though the person may not feel this is the case, they have a representative elected by their district there) and the district representatives, who are empowered to present legislative initiatives at the national or local level. There’s also a way to put forth popular legislative initiatives, which require 10 thousand notarized signatures (with a sworn statement before the notary), plus other requirements, to be presented as a bill.
There are certain issues that could be addressed by specific sectors and be approved as laws, but these mechanisms can also be used to repeal laws that are used less and less. The problem lies in how the National Assembly works, because this entity is not designed to handle a popular legislative initiative process. It has very short sessions governed by a pre-determined legislative plan and an initiative of this kind would make waves.
Any change in the National Assembly, of the kind we’re hearing rumors about (a reduction in the number of representatives, the professionalization of deputies, etc.), requires a change in the constitution, and that would be a good time to incorporate more participative mechanisms.
Our constitution is 40 years old and much progress has been made in this connection, particularly in our region. We don’t have to invent participative mechanisms, we can draw from projects such as those seen in Venezuela, Ecuador and Bolivia without any reservations and incorporate these ideas into a political project that aims at a more participative and democratic form of socialism. This is an opportunity to give the people much more power and allow it to participate directly in the process of creating and approving laws. For me, the number or representatives or whether they are professional or not is not important. That doesn’t decide whether the system is more or less democratic. Democracy is when you can you decide the most important things yourself.
Many a time, decentralizing mechanisms aren’t mentioned. We need to decentralize the exercise of State power, give more power to municipal government, where citizens can have a greater say in decisions and therefore have more personal power.
In this legislatively disjointed context, could the new constitution be the pivotal point?
MF: As I see it, what we’ve lacked in recent years is a systematic conception of the law. The law does not stem from political will. Such decisions create contradictions which make the system incoherent. Law creation is a science and ought to be treated as such. It can’t represent a problem for people. People tend to approach lawyers or notaries only when they have a problem, and things shouldn’t be like that.
We all agree we need a new constitution, but, for me, the most important thing is for the process to be impelled by us Cubans. There are plenty of participative mechanisms: from the calling of a constitutional assembly to the possibility of the National Assembly to reform the constitution. There are ways to submit bills to the people for debate. The National Assembly is empowered to democratize the process of drafting the new constitution to the most modern extent imaginable.
There are mechanisms that rely on the Internet, such as digital initiatives, and the traditional neighborhood or workplace meeting. It is crucial for people not to feel that this boils down to “saying what I think so that someone else will decide for me later,” but, rather, that they are participating in an effective and real way, that their opinions will actually be considered.
Are the Cuban people prepared for that kind of participation?
MF: With the constitution we have today, it is possible to create better laws in Cuba. There is much potential in the 1976 constitution which was reformed in 1992, and it hasn’t been tapped. There are many elements, such as the decentralization of decision-making mechanisms, the regulation of certain rights which the Cuban government is criticized for (freedom of speech and association, for instance) that have no regulatory law. The constitution affirms those laws would be regulated, but they’ve never been passed.
There’s also highly significant potential from the point of view of the participation of workers in economic decision making. The constitution affirms that such plans ought to be discussed with the workers and they are the ones responsible for approving these plans through their participation in economic management, but there’s been no way to make that a legal and effective mechanism that goes beyond the formality of meetings where everyone raises their hands in agreement.
There’s no need to draft a new constitution, but, if you’re going to do this, don’t miss the chance to do it with the most advanced ideas out there. With the Labor Code, we lost the opportunity to introduce highly advanced concepts of labor law (the progressiveness of labor rights, gender issues, etc.), ideas that were advanced by workers but did not make it through the filter of the commission that approved the bill presented to the National Assembly.