The Traps of Constitutional Reform
By Miriam Celaya (Translation: Norma Whiting)
Translating Cuba - 14ymedio
August 1, 2018
West Palm Beach – A reading of the 224 articles of the constitutional draft confirms the Government’s intention to shore up and update its own legitimacy through the modifications made to the Constitution.
The second objective seeks the elimination of any possibility, whether current or future, of questioning the illegitimately established “socialist” political system, with the Communist Party (alone) as the “society’s and the State’s leading and superior force” at the forefront — now with the appended epithet of “fidelista” — which in itself contradicts any presumption for a democratic Constitution.
The third intention is to tweak the legal framework in order to adapt it, to some extent, to XXI Century-language, and to offer a chameleonic response to the requirements and criticisms that are being made against Cuba in the forums of many international organizations.
As expected, an autocratic legal empire is maintained which makes it impossible for the governed, in their capacity as citizens, to regulate, modify or suppress the outrages of power. This legal anomaly will remain camouflaged under terms previously demonized because it corresponds to the liberal principles of the “decadent capitalist society” that will now be made sacred even from the very preamble of the Law of Laws. This is demonstrated by the introduction of the “new” concept of a democratic, independent and sovereign socialist State of Law, declared in article 1, chapter I (Fundamental Principles of the Nation)
This article reaffirms the congenital malformation that characterizes the current Constitution by establishing that Cuba “has as its essential objectives the enjoyment of political freedom, equity, justice and social equality” rights that, nevertheless, are abolished by the obligatory nature and irreversibility of socialism as a political system, endorsed in Article 3, which does not recognize the multiparty system, and by the greater power that Article 5 grants to the Communist Party, whose attributions are incontestable.
Later on, Article 39 insists that “the Cuban State guarantees the enjoyment and inalienable, indivisible and interdependent exercise of human rights to the people, in accordance with the progressive principle and without discrimination,” when in fact the Constitution project — though it penalizes discrimination on the grounds of gender, race and religious beliefs — ratifies, without disguise, the existing political ideas that differ from those set by the Power.
This is reinforced by Article 224, which declares that “the pronouncements about the irrevocability of socialism and the political and social system established in article 3 will not be able to be reformed at all.”
Another detail of article 39 is this gem that masks another subtle legal trap: “The rights and duties recognized in this Constitution are interpreted in accordance with international human rights treaties ratified by Cuba,” but it just so happens that the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights are among the main international human rights treaties in existence, none of which has been ratified by Cuba.
While Title IV (Rights, Duties and Guarantees) dedicates the entire chapter III to Social, Economic and Cultural Rights, Civil and Political Rights do not receive an equal treatment. This corresponds, undoubtedly, to the fact that this is an absolutely private plot of the Communist Party. The recognition of private property, a term that is hardly mentioned to indicate that it is one of the five “forms of property” recognized in Article 21, is one of the new developments that have been privileged with the attention of the international information media in recent weeks. At this point we should make mention of the undeniable talent of the dictatorship for creating suspense, dazzling the foreign press and introducing false expectations of democratic changes that, in reality, only reinforce the omnipotent power of the ruling caste.
Types of property allowed in the project are: the socialist, in which the sagacious State acts as owner “representing and in the benefit of all the people” the cooperative, as conceived by the State-Party-Government itself; the mixed, which combines two or more forms of property; that of the political, mass and social organizations, which constitutes a true unknown and undoubtedly a heavy burden for the public treasury; the private one, which “is exercised over certain means of production” and, finally, the personal, which “is exercised over goods that, without constituting means of production, help in fulfilling the material and spiritual needs of the owner”, which, expressed in such ambiguous terms, could include at the same level both housing and automobile, as well as the TV set or the deodorant used by anyone. This is how deep the changes are.
Of course, threats to any manifestation of dissidence are ever-present, permeating the spirit of a constitutional reform “forged by the people to give continuity to the Revolution and socialism”. The text is even more explicit when it asserts that “citizens have the right to combat, by all means, (…) anyone who attempts to overthrow the political, social and economic order established by this Constitution.” Among that which must be “combatted” is “the cyberwar” (Article 16), as a sort of reproachful little finger that points to independent and alternative journalism and that, in the end, constitutes an unacceptable recognition of the advancement of these methods of communication, hand in hand with information technology sneaking into Cuba, in spite of controls and State censorship.
The profusion of articles about the project, the diversity and complexity of the issues and the pedestrian mode of their writing prevent a complete analysis all at once. Undoubtedly, each paragraph is worthy of comments that cannot be addressed in a space as limited as an opinion column.
If this time anything can be made to coincide with the masters of the plantation, authors of the legalistic monster, it is the fragment of a statement that reads as follows: “We Cubans must be aware of the commitment that the new Constitution of the Republic implies for present and future generations.” It could probably be the truest words of the whole project. Because, although of the “popular consultation” surprises cannot be expected, Cubans will have the opportunity to say NO at the polls and assert their rejection of a dictatorship that, since before learning to protect itself with legalistic tricks, had stripped the Cubans of their dignity and of their rights. It is now trying to snatch the last hopes from us, but it wouldn’t necessarily have to be “more of the same.” Acquiescence or rebellion: that is the real issue, and it is not to be decided by the Government, but by the vote. Will we go for it?