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The constitutional debate from a citizens perspective
October 28, 2014
The Constitutional Consensus has several important added values. The participating citizens begin to grant meaning to specific and historic information concerning constitutional topics. This has led them to gather ideas, texts and documents relation to the constitutional history of Cuba as well as from other parts of the world.
Manuel Cuesta Morúa
@cuestamorua
 

The challenging constitutional debate has begun and now focuses on the essential: the citizen. The initiative for a Constitutional Consensus in Cuba has been calling on experts, activists and in general all citizens to voice their ideas in outlining a constitutional roadmap. The democratic rules of the game, grounded in the legal discourse, which shall be agreed upon, will structure the future Cuban coexistence through civilized manner. This debate is occurring for the first time in Cuba.

The democratic rules of the game mentioned above refer to the constitutional rule of law, which will be the model for founding a new country. In principle it is and has been to resist the temptations of the leading elite and to overcome some superficial issues concerning the vanguard. The latter, has fatally reduced all notions of country and nation, devastating more than just a nation project.

This is achieved through the Constitutional Initiative Roundtables (Mesas de Iniciativa Constitucional), which includes citizens’ participation in the creation of a constitution through a democratic process. It is vital to move beyond the current ‘means to an end’ relationship, which damages both the political link between state and citizen as well as the relationship among citizens, and to encourage the possibility for a political construction of the state. The case of other Latin American countries shows how the call for participatory democracies has enthroned new electoral warlords.

What follows is a kind of intellectual account on these citizen debates that have taken place all over Cuba at hundreds of Constitutional Initiative Roundtables –during two different days in May and June 2014 – describing the various complementing and contrasting visions among the participants.

As is known, these debates are informed by the 1940 Constitution, the 1976 Constitution and the proposition known globally as New Constitutionalism. In many of the constitutions that have been established over the last century there are serious limitations in regards to the expression of culture, demands and rights as well as to the relationships between state, citizens and society.

These discussions that we initiated run parallel to the citizen’s participation activities such as the collection of signatures and citizen’s petitions, which illustrate the citizens’ backing and support for Constitutional Assembly project that was promoted by Nuevo País. Through these actions, the amount of committed citizens and civil society groups is increasing and the independent political community is evolving.

We will start with the preliminary findings, which will help put this discussion into context. Cuba has been a totalitarian state for over 50 years. This has insured the meticulous removal of all notions of rights and law, the vision and practice of any institutional life and the value of the rule of law. We live in a nation where human rights violations are not only conventional, established and legitimized – like institutions – but also where the whole notion of human rights has disappeared in the mentality and culture of its citizens.

Furthermore, we live in a country with a double standard economic crisis. On the one hand, the economic crisis has generated a model and on the other hand there is a crisis of the model itself. The difficult economic situation of the people, considering the inability for them to satisfy even their basic needs or to create welfare, is aggravated because neither the productivity and economic structure, nor the ownership structure are capable of providing a sturdy foundation for the present and future of families and the society in general. Alternative options are challenging because without the state recognizing certain rights, efforts to articulate social demands are blocked and obstructed. The impact of social pressure on the state for its failure to respond to the most crucial social needs is further worsened through years of economic mismanagement.

We are facing the worst economic crisis in the history of this country and the resulting social consequences are leaving Cuba fall behind other Latin American countries with historical levels of inequality. The loss of values, the discontent of the youth and the abandonment of citizenship, caused by both state malpractice as well as by the people’s inability to take up their role in society, has put us as nation and society in front of a possible social and political implosion, in a country that lacks the ability to manage and channel its multiple crises.

The challenge is to tackle this crisis positively and creatively, building a rule of law from scratch that offers a basis and provides guidelines for the creation of a new coexistence, accomplishing three main challenges: a model of a stable state, citizen’s security in order to employ individual and civil society initiatives, and a democratic government.

The difficulties that may arrive in achieving these challenges are distinct. Above all the weak sense of citizenship, which has been strengthened through various Nuevo País initiatives, as well as the lack of a culture of rights, which prevents the sustainable growth of social demands. Further, the usage of legitimacy criteria, which takes place in all of the state but not in the citizenship and let us not forget the constant state repression against various civic and political proposals aiming to democratize both the state as well as the Cuban civil society. In conclusion we have an implosive cocktail that has constantly moved us away from the patterns of modernity.

The Constitutional Consensus has chosen to prioritize citizenship-building issues, sources of legitimacy, the rule of law and the nature of power, including its exercise. The hypothesis claiming that social and political sustainability, which essentially includes the economy, depends more on the legal state of a nation than on investments or government policies is based on some clear historical examples.

The essential concept for these debates, which another might call elegant conversations, is that of Deliberative Democracy which entails permanent spaces for citizens to do two things. First, to propose different ideas for change without political mediation between specific groups, that is to horizontally debate different viewpoints to enrich and strengthen the exchange of ideas, which would further aid in recovering the notion of a legitimate citizenry. Secondly, the respect and tolerance for these different points of view, which is a key premise for the Deliberative Democracy: the other’s point of view is vital in the construction of a democratic rule of law.

The Constitutional Consensus assists this process by allowing most civil society organizations to meet and put forward proposals from their specific areas in order to design and draft a constitution that takes into account the diversity of interest and the plurality of the Cuban society.

The debates have been organized through a complex matrix and with the concept of the democratic rule of law in mind, in which participation of civil society aims to fundamentally reshape the political legitimacy.

From this starting point, I will organize the examination, representing the diversity of ideas of each position, taking the following positions into consideration: The Charter 40, using the title of one of the position papers offered; the 1976 Constitution, and the New Constitutionalism.

The Charter 40

The question of departure, from a citizen’s point of view, could have been: Why not start with the Charter 40?

Many of the participants agreed that 1940 Constitution should be used as a starting point in the constitutional process. For most of them, the idea of rescuing the historical roots was essential, to fundamentally change the constitution and build it on a solid foundation. For them, this is the only way to instantaneously fill the cultural gap in terms of legality of rule of law. Further, it would show that we have important traditions in our history and that what happened since 1959 was completely irregular. Accordingly, they argued that it is out of question to entirely incorporate the Charter 40, but the Charter should nevertheless be used as starting point in promoting reform through citizen’s participation.

They fully agreed to use the 1940 Constitution as a tool for constitutional change. The proponents saw this Constitution as a fertile ground for planting new constitutional plants on historic grounds, psychologically empowering, by revealing a Cuban legislative tool in a society with a strong constitutional tradition within the alleged socialist model.

Many participants dismissed the argument that Cubans are not familiar with the Constitution of 1940 on the ground that the same had occurred with business culture once Cubans had recovered, be it for the reasons of the state or because of reality, they regained the economic competences in order to survive. This reasoning was transferred to the legal field, on the assumption that given the need to seek a framework for coexistence that offers securities to the public in its many and diverse interests, Cubans, with the current level of instruction, may begin to value the Constitution as a good tool to start working on rights and responsibilities. In any case, Cubans are not familiar with the Constitution.

According to one group of participants, the 1940 Constitution has a political advantage over the 1976 Constitution and the idea of New Constitutionalism. First, the advantage of historical sovereignty has been pointed out. Unlike the 1976 Constitution, the 1940 Constitution was made from inherent historical and cultural elements, with no outside influences but with universal values through which the universal constitutionalism is founded and in which there is reference to the origin of fundamental freedoms. Indeed, the 1940 Constitution arises from the decline of political influence on our republican system through the Platt Amendment enforced in 1902 by the United States and the external geostrategic constrains on the institutions of the republic started to disappear.

They add that the origin of the 1976 Constitution is to be found in the model of the Soviet Constitution of 1936, which has nothing in common with our own history, culture and political reality, and thus marked the return of foreign powers, which imposed restrictions on our institutions. The preamble of the 1976 Constitutions is a clear reminder of this, thanking the former Soviet Union for its very existence.

With regards to the New Constitutionalism, the advantage of the 1940 Constitutions for its proponents is the fact that starting from scratch would imply working without a document of reference, which could marginalize the debate, divert from the course and divert from the creation of a constitutional platform. To avoid this, they continue, it is best to not deceive and pretend that a constitution can be invented. The only option is to innovate and for this purpose to take the best starting point, the 1940 Constitution.

The 1976 Constitution

The participants also discussed the use of the 1976 Constitution. Some participants could not comprehend how constitutional changes could be achieved using the mechanics of the current legislation, whereas others considered using the current legislation to be the only option in order to ensure a change from one legal system to another even though they do not agree with the current Constitution.

Others suggested taking into account the non-ideological nature for the intended democratic constitution. For them, the essential border between a constitution that respects democratic values and one that does not is whether it contains components of a specific ideology. Most participants do not believe that the current Constitution has the potential to be converted through substantial changes, in a democratic fashion.

However, one group estimated that to be able to engage with the government and the supporting sectors, one must make changes within the existing system and introduce notions to protect individual rights and fundamental freedoms in the current Constitution. According to them, this is the only way to ensure that the members of the Communist party do not hinder democratic reforms, at the same time altering their ideals of tolerance and respect for other forms of thinking and understanding the political and social order of civil society.

Never the less, the prevailing idea of employing the 1976 Constitution as basis for the constitutional change involves more risks than opportunities or benefits. One of the risks is re-legitimizing the group in power through the legitimization of its constitutional framework as a historical platform with a national political tradition. It was argued that there would be a problem for the legitimacy of the political pluralism and for other groups and actors if the current power were to be accepted, directly or indirectly, as a legitimate power. As the constitution is a tool and not in itself a guarantee for the cultural behavior of the actors and citizens, it would be problematic not to clearly define this in constitutional terms, the power to legitimize political action belongs equally to all citizens and stakeholders. Nobody above the law, which means that power relations cannot define the rules of coexistence.

This being said, it must be taken into account that to a certain extent, political realism requires the acceptance of these viewpoints by those who hold power and the sectors supporting it. This can be understood, as some proponents put it, that some articles of the current constitution, which allow a flexible interpretation to include all citizens, should be accepted.

Another approach on this subject could be of interest. It offers the best strategy and seems to point out clearly the weaknesses of the 1976 Constitution, vividly exposing the inability for this Constitution to be reformed in a democratic fashion. In other words, although the option to reform the current constitution within the democratic nature of the debate remains, this does not mean that the debate itself cannot demonstrate that the 1976 Constitution does not function for certain purposes. The fact that this constitution acts as fundamental law for a totalitarian state, morally and technically invalidates it in terms of its efficiency to offer a framework for rights and legality. A further important fact is that the government camp is talking about the need to reform the constitution. If this reform is executed, we should assume and understand that the government itself admits gaps in its constitution, regardless if this is respected or not, or if it was implemented by the authorities or not.

And of course, one cannot speak of a constitution for everyone, nor would it be sufficiently realistic in the presence of the current power structures, if the viewpoint of the Communists would not be included in the constitutional debate. But the following question remains open: How can we ensure that the constitutional change recognizes certain rights and the rule of law if the main deniers participate?

The answer to this question, following the debate, depends on how much pressure is generated by the public. If there is only a minor participation, such as the proactive civil society, it is unpreventable that everything will change in order for everything to remain the same. But if there is a critical mass of citizens that participate and identify with the process, then there is a possibility to neutralize the anti-democratic advance of the government along the way.

Further, there was a moral debate. Starting from the 1976 Constitution would imply for many, supporting or giving legitimacy to the government and to some sectors, who have not only destroyed the country but did so while mocking their own laws. Therefore, for many of the debaters the only way to make the regime’s supporting sectors understand the value of the laws and the respect they deserve, is to show them other options, in which they have not been involved. The supporting sectors will be able to compare and realize the value of this legal system, precisely because the very people and groups who designed and developed them, did so through a remote conceptual framework, far from the matrix that has been advocated for over 50 years.

Nevertheless, a part of the citizenry and civil society is willing to negotiate if the 1976 Constitution is taken as a starting point and the government initiates a political transition process. But most of the participants felt that the democratic law must be made in a new spirit that does not abolish the process and does not allow for those who have always been opposed to democracy appear as guarantors of democracy. In terms of constitutional issues the mentality of avoiding a theft by handing over the responsibility of the wallet to a thief cannot be accepted.

Elaborating on this issue in the constitutional debate, there is a further argument: self-respect is the best guarantee for consistency, compliance and efficiency in any project that is undertaken. Hence, the next question: Who guarantees respect for what has been denied for decades, if not even the own work itself has been respected? The most successful way to be assured if the constitutional reforms will be respected is to observe if those who created the 1976 Constitution respect this constitution. And this, one may conclude, does unfortunately not occur with this government. In legal terms, one of the most important issues is what is known as legal security, which includes instruments and incentives that are converted to cultural habits, depending on compliance and enforcement of the law. The government is suspended in this subject, as was to be expected.

New Constitutionalism

The discussion over a new constitution has become increasingly profound and enriching through these past days through the Constitutional Consensus.

A favorable argument supporting the New Constitutionalism is to avoid political and ideological confrontations unleashed through the options of using either the 1940 or the 1976 Constitution as basis. There are fears that this could become all but a rational controversy over the merits and shortcomings of either constitution in providing a good starting point for constitutional change and may well lead to an entrenchment of believes, discouraging a non-ideological, rational environment for discussion. Others have argued, that a novel discussion would be strenuous, diverging the discussion in an unwanted direction. But this is an inevitable step necessary to render the hard positions and thereby achieve pre-constitutional agreements in order to facilitate the ideological neutrality of the constitution itself. Following this logic, a new constitution should be favored.

Another argument concerning the New Constitutionalism is the citizen’s identity in the constitutional text, which is linked with their participation and conception of the constitutional concept.

A negative methodological focus allows shedding more light on the arguments of those proposing a new constitution. The 1976 Constitution and the 1940 Constitution can be dismissed as starting points for constitutional change on the grounds that both are as distant from ordinary Cubans as the Cuban Constitution of the nineteenth century of the 1901 Constitution. Certainly, one may argue, that there were far more people involved in the 1976 Constitution than at any past date, however there is also no strong social tendency justifying the idea of a strong legal culture that is difficult to remove, in order to redirect the constitutional track.

The lack of juridical and legal knowledge of Cuban citizens requires starting from zero in offering the society a constitution of legal contents that defends, promotes and fulfills both individual rights and the rule of law.

The New Constitutionalism implies a new constituent. It is important that political parties do not mediate the constituent. This would taint the process and we would risk repeating what happened to the 1940 constitution when the political parties that made the constitution possible, froze the succeeding legal steps; a set of complementary legislation that would have allowed the constitution that was voted on, to be effective. The past teaches us vital lessons but also illustrates patterns of behavior that can destroy important processes.

An essential point for the advocates of the New Constitutionalism is religious plurality. It was pointed out that, as was the case with religious participation, there is a need for a law of worship that guarantees the right and the equal treatment of all religions within the state, regardless of the government. Some recall the importance of this law because the declaration and recognition of a secular state is insufficient, as is the case today in Cuba. Additionally, it is inadequate not to mention religious discrimination, as is reflected by the current Constitution. There is a necessity for a positive law that clearly defines religious rights, religious equality and their enforcement.

Speaking of religious plurality, another fundamental issue for the nature of a future constitution is that of cultural pluralism. According to some, the problem of all past constitutions including the current 1976 constitution, which by definition is not pluralistic, did not embrace the cultural plurality of the country and the rich diversity on which our nationality was founded. The fact that the state and the Communist Party have institutionalized a department that is placed above the diverse religions and thereby also above the Cuban culture, reflects a policy and ideology of arrogance rooted in the denial of plurality in the constitutional principles in Cuba.

Another set of arguments focuses on the constitutional direction. While the 1940 constitution was exemplary in many ways, the period in which it was established was a very controversial time in our history and may lead to remote disputes that do not relate to the current Cuban needs. Irrespective of the many changes and reforms that would be required it would not be worth the double discussion of a dividing past and the focus should be put on transforming and rescuing an institution that is detached from most Cuban citizens. Hence the idea that a society that builds a constitution is better protected and can identify rather than a constitution that is given. The problem with the 1940 and 1976 constitutions is that they are issued by the past and by power. Today, people have little to do with them and yes the possibility to participate in the creation is in line with our times.

Cubans must think about and devise a new constitution, one may think, after so many years of living without strong legal constitutional references. Previous constitutions informed the debate with ideas, words and forms of expression but which today are unfamiliar and do not reflect the majority of our aspirations and demands. Beginning with something new, one must understand, has the advantage of understanding one another with a language most Cubans use today: a popular language, without artificiality. The laws and articles of the constitution must be written in a language and manner understandable to most, something that did not happen with the constitution of 1940 or with the constitution of 1976.

The New Constitutionalism is also subject to criticism. Disregarding the cultural tradition or historical roots is not a productive way to devise a constitution. According to this argument, the lack of well-established political forces, the loss of values and the disconnection of Cubans with the world, the law and the sentiment of responsibility should not invite us to improvise in an area as complex as the constitution.

Other considerations

A set of premises was shared throughout the citizen’s constitutional debate. The necessity to decentralize power, the urgency to remove ideology from the law and the consideration that international law must prevail throughout domestic law were some of the conclusions. A historical and cultural problem of Cuban politics reoccurred: the anti-authoritarian effect of the decentralization of power. It has taken the Latin American culture over 200 years and still the tradition of horizontal power has not been incorporated. First, devolution of power could accomplish what other tools have been unable to achieve, these tainted tools reproduce certain cultural conducts in opposition to the democratization and the notion of horizontal, cultural plurality. Another argument takes the efficiency of the administration into account considering the reduced effects of corruption on a more local government, one of the most destructive elements to democracy. A third point is the adequate protection of individuals against power. The less centralized and concentrated the power is, the more can the implementation of individual rights be guaranteed effectively, towards an environment of public safety at large. Finally, the argument in favor of a constitutional change considers the impact of individual and collective initiatives and creativity.

A constitutional consensus can be reached with the help of the previous findings. From these debates we can deduce the necessity of the classical division of powers, the importance of a tribunal enforcing constitutional guarantees and the requirement of a new constitution, expressing the will of the people, to ratify a new constitutional framework. And not the expression of will of political parties or the real or supposed representatives of the citizens’ interests but as direct expression of the people.

At a crucial point of the political debate in Cuba there was dissent. This is whether or not the constitution should endorse social contents, following earlier references of the Latin American Constitutionalism, created at the University of Valencia in Spain. One should not forget that Cuban society has experienced a social utopia that has been engraved in the mentality and aspiration of Cubans. And of course, given the current state of things, the negative experiences of the social administration in fulfilling the basic necessities of the Cuban state, there are no final conclusions. Maturity is vital in these topics that require further discussion over the social involvement.

What we might call the Thai experience was also part of the consensus. It is more to convert demands i.e. complaints and practical needs of people, into strong constitutional ideas and less about the discussion with citizens about what is or what should be the best starting point to promote constitutional change. Some participants put forward the idea to invite some citizens to propose ideas and demands that later could be converted to a legal or constitutional format. A procedure that has been used in Cuba since the beginning of the project Nuevo País.

What were the other points of consensus? Advance a political parties act in relation to the unions and the economic environment: possible material for the constitutional process. Further, projects to promote laws on minority rights, race discrimination and LGBTI (Lesbian, Gay, Bisexual, Transgender/Transexual and Intersexed).

So far the Constitutional Consensus progresses have been distinct and clear. The best options for us to achieve the changes of the rules of the game of our coexistence are to defend, promote, ensure and protect our rights in general and as citizens. The most important principle is to consider ourselves as subjects of rights and law, which should offer the first and only source of legitimacy. These goals have been achieved with the thousands of citizens that have identified with this initiative.

The Constitutional Consensus has several important added values. The participating citizens begin to grant meaning to specific and historic information concerning constitutional topics. This has led them to gather ideas, texts and documents relation to the constitutional history of Cuba as well as from other parts of the world. Citizens have been distributing to types of digital folders: one containing all Cuban constitutions, with comments, and the other containing other texts, papers and essays on the New Latin American Constitutionalism, allowing them to contextualize the proposed constitutional changes in Cuba.

Another added value has been to understand a new concept of equality that is equality before the law. In a country like Cuba, equality has been understood in relation to “fair” distribution or equitable wealth, not as procedural equality and the rule of law, to which we must all adhere including the governors.

The fact that the society has been perceived trough a strict single power relation and the imposition by force that was intended as revolution, weakened the notions of law. The participants, who through the interchange in this debate, have been shown a new direction of the law, how modifications can introduce democracy and can now comprehend how the compliance and fulfillment of the law is a guarantee for welfare.

This has created a new civil and respectful environment for change. The strengthening of tolerance for different viewpoints has been essential in understanding the equality as dignity of a person and how law should protect it, in order to weaken the temptation to destroy a person’s dignity, which always persists through the execution of power, and to legally punish any infringement of rights.

Many citizens begin to understand their relationship with the state through the notion of citizenship and its power to determine the legitimacy of the state’s power and authority.

Further, the civil society exchange has been strengthened. Through the Constitutional Consensus there is a growing understanding among different organizations that in order to advance a defragmentation of civil society, cooperation among all groups and the ability to find agreement is essential and would allow all to progress.

The impact that collaboration would have on the necessary democratic change is apparent. Many civil society organizations are beginning to overcome their strict corporate visions. These visions sometimes make it considerably difficult for all to understand that the future fate depends primarily on one’s own initiative, in collaboration with the rest, for a joint project in which all can benefit. In this sense we can paraphrase the saying of the Anglo-Dutch Bernard de Mandeville in the Fable of the Bees: The private vice can only be overcome when the public benefits are exercised and shared.

The Constitutional Consensus also works on a fundamental psychological basis, in order to enable deep-rooted changes. Cubans in general need to learn the importance of working medium to long term. We need to realize that what we can achieve, in our personal life as well as in our social and political life, depends on the accumulation of systematic rational acts. It is essential to insist on this point to achieve lasting legal and constitutional changes. After all, the problem with the law is a problem of culture. The 1940 Constitution did not die because of a coup, it died because the immune system of the culture of law was seriously impaired.