Of Pardon and Amnesty / Dimas Castellano

At the close of the Eighth Ordinary Session of the National Assembly of Popular Power, on December 23, 2011, General Raul Castro announced that “in a humanitarian and sovereign gesture,” the State Council of the Republic of Cuba had agreed to pardon more than 2,900 Cuban and foreign prisoners. Despite the positive that will come from 2,900 compatriots leaving prison to live with their birth family, this pardon, like the rest of the steps that the Cuban government has undertaken in recent times is marked by the inadequate, late and limited.

If Cuban socialism is a humanitarian and social justice system, as stated by the government, it would have to accept that releases of prisoners taken by the governments of Cuba prior to 1959, both in the colony as in the Republic, were equally or more humanitarian than the current pardon, and many times those releases were accompanied by other liberating measures that played an important role in social change after their enactment.

The pardon is a measure by which, on an exceptional basis, the Head of State forgives all or part of a sentence or substitutes for it a more benign one. It is, therefore, a favor granted where the prisoner is guilty, but the “magnanimity” of the Head of State can forgive him. However, in our political history it has been more common to offer amnesty which, unlike pardon, means eliminating criminal liability, that is it involves legal erasure of the offense, whether real or perceived. In that sense it is sufficient to cite four such examples:

In 1861, the Spanish government decreed an amnesty that allowed the return to Cuba of those condemned for political reasons, including the physician Antonio de Castro, who organized the irregular Masonic body that developed the separatist rebellion begun in October 1868. Examples of the prior were the patriots from Bayamo, Francisco Vicente Aguilera, Perucho Figueredo, Francisco Maceo Osorio, and Carlos Manuel de Céspedes, all Masons and the rise of Las Clavellinas in Port au Prince, where 72 of the 76 participants were members of the Tínima, lodge including Ignacio Agramonte.

In 1878, thanks to the amnesty decreed by Spain in compliance with the Pact of Zanjón many exiles could return to Cuba. Suffice it to mention four of them: José Martí, Juan Gualberto Gómez, Antonio Maceo and Calixto Garcia. That amnesty was supplemented with other liberating measures arranged between 1879 and 1886, such as freedoms of press, of assembly and association enshrined in Article 13 of the Spanish Constitution, which allowed the legal existence of media organizations, and economic, cultural, fraternal, educational, labor union and political associations that participated in the preparation of the War of Independence in 1895.

In 1937, the then president of the republic, the colonel of the Revolutionary War Federico Laredo Bru, before convening the constituent assembly of 1940, intended to restore the constitutional order that had been interrupted since 1928, he issued a political amnesty that benefited more than 3,000 prisoners, thanks to which the exiles could return to Cuba, new political groupings were formed, among which was the Communist Revolutionary Union Party (1937) and its legalization in 1939 and created a conciliatory scenario from which emerged the brand new 1940 Constitution.

In 1955, Fulgencio Batista after the fraudulent elections of 1954, in order to retake possession, restored the 1940 Constitution that he had violated and granted amnesty to political prisoners, including the assailants of the Moncada Garrison, who in June 1955 founded the July 26 Movement, seized power and are the government until today.

These four examples illustrate the relationship between amnesty in Cuba and social change and highlight the limitation of the present pardon for two indisputable reasons: 1 – because the number of prisoners released is almost 5% of the prison population of the country, among them women, the sick, those over 60 and some convicted for crimes against state security who have served an important share of their sentences; and 2 – because forgiveness does not alter the current state of Cuban society, requiring changes, as it leaves in place the measures that allowed the imprisonment and does not recognize the state’s responsibility for such a high prison population.

Based on the information provided, the overwhelming majority of those released are in prison for common crimes. In this sense, the pardon is unfair, because the released are still considered guilty, thereby ignoring the responsibility of the Cuban state for the reasons that, in Cuba, robbery and theft were turned into everyday behavior, because the failure of wages and pensions promote crime as a way to survive, because of the need for subsistence and because of the many constraints imposed on Cubans lead to crime. Therefore a shared responsibility warranted a broader measure numerically, a self-critical recognition and support for other rights and liberties, so that fewer Cubans increase the prison population.

Similarly, with regards to the few political prisoners included in the pardon, the Cuban state has a good deal of responsibility for making a crime of fundamental rights enshrined in the Constitution of 1940. Among them the right to march and form political organizations contrary to the regime, the autonomy of the University of Havana, prohibiting and limiting citizens from participating in the political life of the nation, and recognizing the legitimacy of resistance for protecting individual rights, and making any contrary act a punishable offense. In short, the inadequacy of the current pardon forces a move towards amnesty and the democratization of Cuba.

(Published in el Diario de Cuba on Friday, January 7, 2012)

January 9 2012