Slight Changes to the New Constitution Could Make a Difference

By Osmel Ramirez Alvarez

HAVANA TIMES – It would be foolish to propose political or economic changes to the Cuban Communist Party (which is the Constituent Assembly the drafted the new constitution). It’s obvious that they want a Constitution that protects the concentrated political and economic power they hold, as much as the current Constitution in force does today. They don’t want to amend anything which promotes more democracy or personal economic empowerment as they consider these to be potential threats.

This why talking about proposals relating to these is useless. However, we can discern a semantic effort to make the new Constitution look like it respects human rights. The trap lies in the way it has been drafted which leaves many topics inconclusive, ambiguous or at the discretion of other laws. Laws which should result from the Constitution, but it seems like they are the ones that hold supreme authority.

As a result, I believe it would be good for us to take part in the debate and discussion relating to the draft Constitution. Of course, I don’t believe that this is a truly democratic exercise, it’s rather a simulation of constituent democracy. Everyone will be able to give their opinion and apparently this will be recorded, but how much this will influence anything remains unknown, not to mention how many counterpart points were made and when something needs changing; it’s a pipe-dream or lie. They will change whatever they want to change and are willing to change, our opinions not really counting for anything.

Real democracy is a constituent process in which the population directly elect the people writing up the Constitution, choosing from free and plural candidates. And a real debate entails public media dealing with every point in the Constitution, experts discussing the reasons for each and every point. And this should all be televised so that people have a fair and well-founded opinion about every article, so they can form judgements and can exercise their well-considered vote.

However, this isn’t the way that things are being done in Cuba and presumably the Government holds enough social and electoral control for it to be approved. Democratic movements on the island still don’t have enough power to influence this process, to make it different and better. This is why we need to try and guide others as much as we can, instead of distancing ourselves. And personal freedoms and human rights are where we can make some headway because this is where the government is giving us some space to make it look like a Rule of Law in the eyes of the international community.

I propose the following and I will make this public knowledge at every debate I should take part in:

1. 1. In Article 48, clause b, with regard to the right to “not be tried or sentenced, without just cause, by the competent authority in keeping with the established timeframe.”, I propose that this also be added: “Only 24 hours detention for police investigation and on the grounds of suspicion, having to present charges before a court within this time period or be released.” This time period is currently 72 hours with delays up to months between the police and the Chief Prosecutor’s Office.
   2. Also in Article 48, clause f), which states: “Receive legal assistance to exercise their defense”, I propose that this be added: “From the very moment they are detained and the right to remain silent or only speak in the

      presence of their lawyer.”

   3. In Article 48 still, clause i), which states: “Not be deprived of their rights without a justified decision from the competent authority or a court sentence,” this needs to be more specific so as to prevent MININT (State Security to be more exact), from being one of these “competent authorities” like they have been up until now, authorized to violate our human rights at their own free will. I propose that this instead read: “Not be deprived of their rights without a justified decision from a Judge for police investigation, never more than 60 days, or only more if there is a court sentence.”
   4. In Articles 52 and 53, about the inviolability of the home and correspondence, respectively, instead of reading: “except for when explicitly ordered by the competent authority,” I suggest it reads: “Except for when explicitly ordered by a Judge.” This would implicate Judges more and take some power away from the Ministry of Interior (MININT).
   5. In Article 54 which states: “People have the freedom to enter, remain, travel in and leave national territory, change house or residence, without any other limitations than those established by the Law.” This is an inalienable human right which is established in Article 13 of the Universal Declaration of Human Rights and in Article 39 of this draft Constitution it states: “The Cuban State guarantees citizens the enjoyment and sovereign, inseparable and the interdependent exercise of Human Rights (…) (set out) in this Constitution are to be interpreted in accordance with the international Human Rights treaties that have been ratified by Cuba.” Thus, this point is contradictory as it is presents the possibility to exercise these rights with a law that limits them. I propose that this instead read: “Only limited by a justified decision from a Judge for police investigation, never more than 60 days, or only more if there is a court sentence.”
   6. In article 58, regarding the confiscation of personal assets, it reads: “… as a punishment provided by the competent authorities, in instances and using the methods determined by law.” I propose that this be: “… as a punishment provided by a court sentence. The law determines the instances and procedures.
   7. In Article 61, it states: “The rights of assembly, demonstration and association for legal and peaceful ends, are recognized by the State as long as they are exercised respecting public order and in compliance with what is established by the Law.” I suggest this reads: “as long as they are exercised respecting public order. The law regulates the exercise of this right.” Like many other rights in the Constitution, it seems that the Law is above the Constitution or that the latter is subjected to the first when it should be the highest of laws.

1. No article referring to the organization of the justice system or the armed forces mentions one of the biggest problems we have in this country which contributes to the vast majority of human rights violations today. This is the impossibility of citizens to present charges against MININT agents (not to mention against the Armed Revolutionary Forces). Police and State Security can abuse citizens (like they often do in reality), violate their rights, the Constitution and everything else they feel like violating, and we have no right to present charges before the Chief Prosecutor. We can only “file a complaint” with MININT itself, at a people’s attention office, which processes the case and decides whether these charges go before a military prosecutor or not. If we were able to file charges directly with the Civil Prosecutor’s Office, then this would be a great victory in protecting the population from MININT’s abuses of power.

Lastly, I would propose a Law (not as part of the Constitution anymore), which would force every municipality to publish an annual report naming every public order officer and recording the number of incidents of contempt and attacks against citizens. And that with a petition signed by 100 voters, the Chief Prosecutor’s Office can open up a criminal investigation against this officer for possible abuses of power.

Such abuses, along with the charge of “potential” social danger, are today the police’s main tool to arrest people without having to find proof. Similarly, they concoct sentences for ordinary crimes and give them to opposition members and independent journalists [to avoid being accused of having political prisoners]. Civil action targeting those prerogatives which facilitate repression isn’t an impossible task today. Let’s take advantage of the fact that they want to establish a Socialist Rule of Law, or at least open-up the world’s eyes to this lie.