I Have No Confidence in the Cuban Constitution / Cubalex, Julio Alfredo Ferrer Tamayo

Cubalex, Lic. Julio Alfredo Ferrer Tamayo, 13 November 2019  — Unfortunately, in the Cuban legal context, there is no Constitutional Tribunal, or, to put it another way, there are no constitutional guarantees. Along with many lawyers, non-lawyers, and legislators as well, I was hoping for a change. Along with other colleagues, I had confidence in the national constitutional tradition, and especially in the milestone represented by the Constitution of 1940, recognised as the most advanced in Latin America, for its time;  nevertheless, it didn´t work out like that. Everybody, whether they voted yes or no, continues with no constitutional guarantees.

In order to be implemented, the new text, in force since April 10th, 2019, needs legislation, which hasn’t yet been prepared, and requires various time periods in which to do it. This gap has given rise to what many have called the “legislative gap”, or “legal limbo”, which is simply a period of legal system paralysis, while waiting for the legislation to be passed. At the moment, the Constitution remains an undelivered message.

To sum up, we Cubans have to wait six months for the new Electoral Law regulating election of representatives to the National Assembly, its President, Vice President, and Secretary; as well as the Council of State, and the President and Vice President of the Republic. And this is going to be delayed even further by other processes. For example, the regulations for the National Assembly will be delayed a year, and two years for the Council of Ministers, the provincial and municipal governments, and their administrative councillors. continue reading

The enactment of the law on Popular Tribunals is eighteen months away, as are also the modifications to the Laws on Penal, Civil, Administrative, Employment and Economic Procedures, and also the legislative modifications needed to effect Art. 99 of the new constitution.

As far as the Family Code is concerned, which is the window which still holds out the prospect of a marriage of equals, there are still 24 months before the start of the popular consultation process and the relevant referendum.

“The most completed and advanced of the Cuban constitutional texts”, which is what Homer Acosta Alvarez, the Secretary of the Council of State, has termed the new Constitution, will be applied bit by bit, because it needs, according to Homer himself, no fewer than 50 items of legislation. And, really, it is difficult to be optimistic about it.

The legislation which backed up the 1976 Constitution was not a happy memory. We can recall the Law on Migration (it dealt with the right to leave the country with an exit permit, a carte blanche, authorised by the Ministry of the Interior), or the Law on Association, and its Regulations (it conditioned the right of association upon prior permission of the Ministry of Justice).

We can think of other equally disastrous legislation, such as Order 149 (which violated the right oto personal property enshrined in Art. 21 of the said Constitution. And also Decree 217 of 1997 (imposed innumerable legal requirements on Cuban citizens of other provinces wanting to reside permanently in Havana).

What we can learn from such legislation is that they are a double-edged sword, holding back and restricting rights proclaimed in the text of the constitution, preventing citizens from exercising them.

Will it be the same this time around? I think so. We Cubans need to be very watchful over this legislation, because they will have been enacted without prior popular consultation, and therefore people will not be able to influence the contents, in spite of the democratic process they have been boasting about.

We remember that Art. 26 of the old Constitution recognised the right of every individual who suffers loss or is prejudiced by inappropriate action by officials or agents. Later, this right was restricted by Section 2 of Art. 96 of the Civil Code, which subordinated its exercise and implementation to declarations of illegality on the part of the superior state authorities. That is to say, if the superior state authority thinks it is not in the state’s interests, there will be no compensation, or indemnification, or any constitutional rights worth a bean.

This right, with identical wording, is anticipated in Art. 98 of the new Law of Laws. It remains to be seen if the regulations which are to enact this constitutional precept, let’s call it Civil Code, will set up a legal mandate of subordinate status, constraining the right to compensation and indemnification for damages improperly caused by state authorities.

If the new Constitution had conceived of a Tribunal of Constitutional Guarantees or other similar entity with the authority and structure necessary to protect the constitution, then those persons who had seen their rights infringed would have had an organisation to go to in order to defend the constitutional position. That organ would be a defensive wall against arbitrary action.

Translated by GH

Counter-revolution / Cuban Law Association, Julio Alfredo Ferrer Tamayo

Lic. Julio Alfredo Ferrer Tamayo

REVOLUTION, for Fidel Castro Ruz, Historic Leader of the Cuban Revolution, is the sense of the historic moment; it’s changing everything that should be changed; it’s full liberty and equality; it’s to be treated and to treat others as human beings; it’s our own emancipation through our own efforts; it’s standing up to powerful dominant forces inside and outside our social and national space; it is to defend values we believe in no matter what sacrifice; it’s modesty, disinterest, altruism, solidarity and heroism; it is fighting bravely, intelligently and realistically; never lying or breaking ethical principles; it is the profound conviction that there is no power in the world able to crush the force of truth and ideas. revolution is unity, independence, fighting for our dreams of justice for Cuba and for the world, it is the foundation of our patriotism, our socialism and our internationalism. Gathered together like this in the Guidelines for Economic and Social Policies, discussed in the VI Congress of the Communist Party of Cuba, ratified by the President of the Republic of Cuba, Army General Raúl Castro Ruz, like a fundamental compass in the construction of a prosperous and sustainable socialism.

Starting off from this definition, it is possible to work out what is COUNTER-REVOLUTION; whatever opposes or contravenes that concept. When we are not treated or don’t treat others as human beings; when we lie and violate ethical principles; when we are immodest, selfish, mean and egotistical; when we do not defy powerful dominating forces in our social and national space. when we do not fight bravely, intelligently and realistically; when we don’t change everything that should be changed, when there is not full equality and liberty; when they don’t allow the Cuba Law Association to exercise its clear human right to have its constitution, and to realise our dreams of justice for Cuba.

Translated by GH

8 July 2013

Justice Without Delay: A Human Right / Cuban Law Association, Julio Alfredo Ferrer Tamayo

Instruction No. 193 of 8 July 2007, of the Government Council of the People´s Supreme Court, affirms in the first that INASMUCH AS: The administration of justice in our country has as a priority the adequate speed in the processing of judicial proceedings in general and in virtue of that there having been adopted various means to expedite the processing of penal proceedings and especially matters concerning the accused who are in temporary custody…

Judicial practice reveals something entirely different, since that adequate speed in the processing of judicial proceedings of the accused who are in temporary custody is uncertain, which can be verified simply by having in view the statistical data managed within the framework of meetings of conciliation or coordination, for the analysis of the issue, meetings held between the Courts, the Prosecutor’s Office and the Headquarters of the Ministry of the Interior, responsible entities or their representatives, mandated by the aforementioned Instruction 193, for the evaluating and specifying of the criminal situation with defendants who are in custody, which report on pending legal procedures, paying particular attention to the reasons that negatively affect cases of detentions longer than 90 days. continue reading

It turns out to be incontestable that the measures taken to expedite the processing of the criminal trial with the accused in temporary detention have not achieved that purpose, since the number of accused persons held in detention, in criminal matters, has not diminished, and quite the contrary continues to increase, and the detention time in that situation goes beyond the excessive, not just by the end of the 90 days as Instruction 193 fixes, but in addition the SIX MONTHS established for that purpose, by Article 107 of the Criminal Procedure Act.

This is to act illegally, breaking Paragraph 3 of Article 9 of the International Covenant on Civil and Political Rights: Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.

It is in this situation that from July 31, 2012, like many people, my wife MARIENYS PAVÓ OÑATE, has found herself at the Western Provinces Women’s Prison; in just three months it will be one year, on the occasion of an alleged criminal offense, and still she has not been brought before the Court to be tried nor has she been released by the Prosecutor.

Lic. Julio Alfredo Ferrer Tamayo

We hear all too often in our mass media with a large audience, such as “Mesa Redonda” (the “Round Table” program) that they analyze and criticize, as a serious violation of human rights, that in prisons in multiple places on the planet, people remain permanently jailed, and they have not even been formally charged. Is this the mote in the eye of another?

30 April 2013