14ymedio, Manuel Cuesta Morua, Havana, 23 January 2016 – Forty years in the life a nation is a short time in the long span of history. In politics, on the other hand, three generations are enough to measure the significance of accomplishments that mark a specific period.
With the Socialist Constitution of Cuba turning 40, we are left with the feeling that 1976 was an insignificant year for the institutionalization of the country. The seminal date continues to be 1959, in which the nature and dynamics of power – anti-institutional – were expressed, and not 1976 in which the Cuban Revolution supposedly institutionalized a process of inclusion of the whole society within fundamental rules that are the same for everyone.
The distance of 16 years between the Revolutionary event and its political institutionalization established and stabilized a particular habit that is typical of pre-modern politics: command by those who triumphed. And the triumph was one of a party above a nation. And so, before 1976, there was the First Congress of the Communist Party of Cuba in 1975, which was the year when those few who came to dominate the destiny of everyone were institutionalized.
The Communist Party is the origin of the 1976 Constitution. It goes without saying that the origins of the Cuban Constitution were anything but democratic. Its conception and drafting were not the work of a group of notables chosen for their diversity and representative of society, but a rather of a small appointed group consisting of militants of the old Socialist Party, specifically directed to copy the outline of the Bulgarian Constitution from the Socialist era, which in turn was a facsimile of the Soviet Constitution of 1936.
Thus, Cuba backtracked almost four years, if we take 1940 – the year Cuba’s pre-Revolution Constitution had been adopted – as a point of departure for a rich constitutional history that responded to the foundations of a modern constitutional state: limitation of power, fundamental freedoms and separation of powers.
Without prior public consultation, the 1976 Constitution inverts sovereignty and crystalizes two sovereign dimensions over society. In this it exceeds, so to speak, the socialist world that it imitates and where it constantly seeks legitimacy. The inverted sovereignty makes it clear to everyone that the source of law for the acts of the Government is not in the people but at the top of the pyramid: in those who rule in their name. The double dimension of this recovery of the concept of sovereignty that precedes the French Revolution warns us that above us is the Communist ideology and above it, and everything else, including international law, is the Revolution, the source of law in Cuba.
The history of the country over the past 57 years is one of tension between the hegemony of the Communists and the hegemony of the Revolutionaries who are active in the Communist Party and who, owners of everything, rule outside of them and the constitution they copied.
But there are two other basic tensions: that which occurs between the Revolutionaries and the country in which they reign, combining caprice and hormones; and that which is born from the clash between the will of the powers-that-be, and constitutional life.
These two tensions push sporadic reforms and counter-reforms of the Constitution to adapt to social and economic reality, that resists the structural and systematic blows of power, and the needs of survival in the face of this same reality. The 1992 reforms, reasserting the secular character of the Constitution and national sovereignty are in the first sense an adaptation. They were reforms to the extent that they put an end to official atheism, a form of State religion, and deleted the article that thanked the former Soviet Union for the very existence of the Cuban State.
In 2002 there was the counter-reform that once again evidenced the dominion of Revolutionaries with card-carrying Communist credentials. To any doctrinaire Communist, not to mention the rest of society that was emerging in all its plurality, it declared the irreversible character of socialism at the exact moment when evidence suggested the complete contrary. Nothing was irreversible nor had history come to an end: neither that proclaimed by the Communist Manifesto of 1848, nor that proclaimed by the American intellectual Francis Fukuyama in 1980 in his book The End of History and the Last Man.
The 2002 counter-reform indicated, however, a more important fact: the Cuban Revolution managed to institutionalize itself as habit precisely because it denies the constitutional life of the country. Cuban has been governed since 1976 in the same way it was in the 16 years between 1959 and 1976: by force of will and wishful thinking. This seems to tell us that the fundamental and necessary changes in the country can only be achieved through the triumph of another revolution.
Is this advisable? In my view, no. Someone said it superbly: The ends are nothing, the means are everything.
Cuban society has come to maturity through the blows of failures and there is already awareness, across all of society, that the country’s progress will be associated with clear and precise rules of the game that avail everyone and that are above everyone in the sense only that no one is above them.
The Constitutional Consensus project, promoted by various organizations of civil society and politically independent emerged from this awareness. For it what is essential it to define the what before the who and to return sovereignty to its only legitimate owners: the citizens. A prosperous and sustainable country can only grow within clear rules. Also moving in this direction are the proposals of the Cuba Possible project and the Coexistence project.
Similarly, the #Otro18 (Alternative Cuba 2018) project does the same, specifying and seeking to recover sovereignty through civil proposals for a new Electoral Law that guarantees plural participation without mediation of all Cuban citizens, leaving behind the single political subject recognized and legitimized by the powers-that-be: the revolutionary.
Important constitutional reforms of at least four articles of the Constitution are key to move in this direction. These are:
Article 3: Which has to do with the exercise of sovereignty and in which, for these involuntary derivations of the popular rhetoric, it is recognized that the people can exercise direct political power;
Article 5: Which awards hegemonic and implicit superiority to the Communist Party, whose reform extends to;
Article 62: Conceived to limit the exercise of the few recognized citizen rights, and;
Article 137: Which clearly defines the legal subjects with the capacity to reform the Constitution, and specifically excludes the citizens from this capacity.
These constitutional articles taken as a whole proportion the typical shielding of the State from society and the citizenry, and reveal the conceptual distortions in the contractual nature that are at the origins and foundations of constitutional law.
The Cuban government has realized that a profound constitutional reform is necessary. It has raised, on several occasion, that it is working on it, and is doing so clearly behind the backs of the citizens, as it develops a proposal for a new electoral law.
Unfortunately, 40 years later, the same spirit prevails: power is attempting an adjusted reform of its measure without prior public deliberation. A weak logic for the institutional future of the country.