Dimas Castellano, 1 March 2016 — “Two Benchmarks of the Cuban Republic” — an article by Pedro Antonio Garcia which appeared in the journal Granma on February 24 — makes a comparison between the 1901 and 1976 constitutions that merits further discussion. Let us look further at three of the author’s main points.
1. It was not the Cuban Revolution that brought down representative democracy but rather the coup d’etat, led by Fulgencio Batista on March 10, 1952, which interrupted the constitutional rhythm of the country. Batista dismissed the president-elect, dissolved Congress and abolished both the constitution of 1940 and the electoral statutes of 1943.
The constitution of 1940 had retained the separation of powers and the rights recognized by the 1901 constitution while adding several others, such as the right to organize public protests and to form political associations which opposed the regime. It also guaranteed the autonomy of the University of Havana, declared any attempt to prohibit or limit citizen participation in the nation’s political life a criminal offense, and recognized the legitimacy of opposition intended to protect the rights of individuals. The coup d’etat that led to the suspension of this constitution in 1952 is an historical fact. But thanks to actions by civilian and military leaders — including Fidel Castro’s assault on the Moncada Barracks — Fulgencio Batista restored it in 1955.
Rather than being fully restored after the 1959 revolution, however, it was replaced with the Fundamental Law of the Cuban State, some of whose statutes conferred on the head of state, the prime minister and the Council of Ministers responsibilities previously held by Congress. This modification was similar to one carried out by Batista in 1952, when he implemented the Constitutional Statutes. The Fundamental Law remained in effect until 1976, when the first revolutionary constitution was adopted. This constitution was slightly modified in 1992 and became a means of preserving the status quo when in 2002 it declared that the political system, as it existed at that time, was irrevocable and would no longer reflect the kinds of changes that regularly occur in any society. Thus, the people — who supposedly are sovereign — cannot amend this Law of Laws, which declares eternal a system that those born after 1992 as well as those yet unborn did not choose.
As a member of the constitutional assembly of 1901, Juan Gualberto Gomez — a man Garcia acknowledges as a key figure of Cuba’s struggle for independence — opposed an attempt to constitutionally codify anything that might act as a brake on social change. Juan Gualberto Gomez stated, “I consider this to be an anti-liberal document. Having been given a specific mandate, we are taking advantage of our presence here by trying to toy with the future, by cutting off the people’s right to tomorrow and hindering their momentum.” He was referring to a counter-productive and harmful attempt to legislate in place of others, something we forget we when we deem the current political system to be irrevocable.
2. The articles of the constitution of 1901 established the principle of independence and sovereignty, and nullified other existing laws that undermined this principle. It excluded women from voting while extending universal suffrage to men. It granted the President of the Republic powers formerly held by the Spain’s colonial governor. Obviously, it protected private property.
The constitution of 1901 endorsed fundamental rights. Article 16 restored habeas corpus: “All those detained will be released or remanded to the competent judge or tribunal within twenty-four hours of their detention.” Article 25 granted freedom of expression “in speech and in writing, through the press or any other method.” Article 28 allowed freedom of association “for all lawful purposes.” And Article 29 enshrined freedom of movement. These universal, indivisible, sacred and inalienable rights and freedoms form the foundation for civic participation and popular sovereignty.
The constitution of 1901 was so ahead of its time that the rights it encompassed were not universally recognized until the adoption of the Universal Declaration of Human Rights in 1948, almost half a century later. Notably, the first proposal submitted to the United Nations’ Social and Economic Council for further consideration was presented by the Cuban delegation at this constitutional event.
The Protest of the Thirteen; the peasant struggles at San Felipe de las Uñas, Realengo 18 and Ventas de Casanova; student protests and university autonomy; the strikers movement from 1902 until the overthrow of Machado; the repeal of the Platt Amendment; the ultimate consensus of various factions at the 1939 Constituent Assembly. These historic struggles are examples of the blossoming of Cuban civil society, whose foundations were laid by the 1901 constitution.
The article’s author points out two limitations to the 1901 constitution: denying women the right to vote and extending the powers of the colonial governor to the President of the Republic.
Regarding the first issue, it is certainly true that the 1901 constitution did not grant universal suffrage. However, by taking advantage of the liberties recognized in this founding document, women founded multiple associations and media outlets, and organized meetings and gatherings to promote their rights. In 1917 women were granted custody of their children and control of their financial resources. In 1918 the Divorce Law was approved. The First National Women’s Congress was held in 1923, followed in 1925 by the Second National Congress, which led to a promise by President Gerardo Machado to grant women the right to vote.
After the overthrow of Machado in 1933, the National Feminist Alliance appealed to the interim president, Carlos M. de Cespedes (son), demanding the right to vote. As a result of those negotiations in January 1934, during the government of Ramon Grau San Martin, a Constitutional Convention was convened which recognized the right of women to vote and to be elected. During the presidency of Colonel Carlos Mendieta an interim constitution was approved, whose Article 38 formally extended the vote to women. And in February 1939, prior to the Constituent Assembly that drafted the Constitution of 1940, the Third National Women’s Congress called for “a constitutional guarantee of equal rights for women.” This demand was endorsed in the constitution adopted in 1940. As a result Cuban women legally exercised the right to vote in the elections of 1940, 1944, 1948, 1954 and 1958.
Regarding the latter — in other words the powers granted to the President of the Republic, which had formerly been those of the Captain General — one need only compare the powers of an executive branch, which are limited by legislative and judicial branches, with the powers established after 1959, which are those of a totalitarian, one-party state with monopoly control and ownership of the means of production. Need I say more?
As we can see, while the republic founded in 1902 was not exactly what Cubans had fought for, the undeniable fact is that Cuba was able to join the international community of nations with its own legal framework, close the door on annexation, disentangle itself from the Platt Amendment and convene a constitutional convention, which drafted the glorious constitution of 1940, the same constitution that provided the legal foundation of Dr. Fidel Castro’s defense at his trial for the assault on the Moncada Barracks.
3. By 1975, a time when country was undergoing profound transformations, the constitution of 1940 was no longer applicable to that moment in history. A new Law of Laws was needed for this new stage of the revolution. A group of jurists, appointed by the political and mass movement organizations, produced a draft constitution. In every school, workplace, military unit, city block, farm and rural village people discussed the document and made corrections and additions.
If Cuba was without a constitution from 1959 until 1976, it was not necessary to draft a new constitution. Since the 1959 statutes did not provide such a framework, what was needed was simply a constitution.
The 1976 constitution recognized rights and freedoms such as equality under the law, suffrage for both sexes, freedom of speech, of the press, of association and the right to protest. Where it differed from the constitutions of 1901 and 1940 was that these rights were subordinate to Article 5, which recognized the communist party as the dominant driving force of the state and society, whose goal was to build socialism and advance towards communism. This was summed up in an address by Fidel Castro to Cuban intellectuals: Within the revolution, everything; outside the revolution, nothing. Subsequently, articles six and seven stipulate which organizations are to be recognized, protected and fostered by the communist party, which led Cuba’s constitutional traditions to suffer an historic setback.
Originally published in Diario de Cuba
