WOLA: Advocacy for Human Rights in the Americas

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10 Apr 2019 |

Cuba Has a New Constitution. What Happens Next?

By Teresa García Castro and Raudiel Peña Barrios

After a long process of consultation that included a referendum vote, Cuba’s new constitution came into force today. The new text includes some key reforms, as well as some reversals; however, it is undoubtedly superior to the constitution previously in force since 1976.

The new constitution—which introduces significant changes to Cuba’s economic, political, and social model—is better adjusted to the country’s new political era. Now—while experiencing a complicated economic situation, and a deterioration in relations with the United States—Cuba will have to make significant changes to its legal framework, ranging from a new Electoral Law to a new Family Code, within a two-year period.

The approval of the new constitution is just one component of a broader, gradual process of reform taking place in Cuba. These changes include an increase in entrepreneurship and private sector growth, greater freedom of travel, more space for political debate, expansion of Internet access, and a more vibrant artistic and civil society. The relatively open process by which the constitution was approved via referendum was also indicative of how important changes are underway in Cuba.

The text recognizes some 24 rights that previously went unrecognized in the Cuban Constitution, including the right to free transit, the right to receive and request truthful, objective, and timely information from the state, and the right to life.

The new constitution furthers this process of reform by implementing changes that include the recognition of private property, the promotion of foreign investment, the strengthening of local governments, and the restoration of the position of prime minister. In addition, the new text expands the protection of human rights and its constitutional guarantees, while introducing other modifications to the political and the electoral systems.

Political and electoral reforms

The constitution introduces several relevant reforms to Cuba’s political system. Arguably one of the most important changes limits the mandate of the president and vice president (who are elected by Cuba’s National Assembly, as in parliamentary systems) to two consecutive five-year terms. (Another key reform: the president is now required to be less than 60 years old when elected.)

This is a transcendental change in a country where, for 60 years, the alternation of power has not been a feature of its political system.

Another major reform creates a new set of governors, who will serve as the highest executive-administrative power in Cuba’s 15 provinces. This constitutes a significant strengthening of the authority of local governments.

In terms of electoral reforms, one of the most important changes is the creation of a permanent electoral body, the National Electoral Council. This represents one of the biggest reforms in Cuba since the creation of the National Assembly of People’s Power (the Cuban Parliament) in 1976. The electoral council is meant to be the institution that guarantees the rights to political participation and suffrage. Among its most important functions is to control the preparation and updating of the electoral register, in accordance with the provisions of a new electoral law. According to the new Cuban Constitution, the National Assembly is supposed to approve new Electoral Law in October 2019, six months after the Constitution comes into effect.

The expansion of rights and guarantees

One of the most important reforms contained within the constitution is an expanded recognition of rights for Cubans. The text recognizes some 24 rights that previously went unrecognized in the Cuban Constitution, including the right to free transit, the right to receive and request truthful, objective, and timely information from the state, and the right to life.

Cuba will have to grapple with these many changes in the midst of a tough economic situation, a regional crisis related to Venezuela, and the U.S. government tightening its economic embargo.

Another major mark of progress is a constitutional provision that recognizes the universal, interdependent, inalienable, imprescriptible, and indivisible nature of human rights. This corresponds to the content of major international human rights treaties signed by the Cuban state.

Other new rights recognized by the Cuban Constitution include:

  • The right of persons deprived of liberty to social reintegration.
  • The right to work.
  • The right to adequate housing, water, food, and a healthy and balanced environment.
  • The prohibition of child labor.
  • There are also expanded guarantees for women’s sexual and reproductive rights, as well as expanded protections for women from gender-based violence.
  • The right to dual citizenship (although the Cuban one is only valid in the country).
  • The right of every person to establish a family (of whatever typology), and the state’s duty to protect them.

Expanded rights of due process of law

In addition, for the first time since the Cuban Revolution, the constitution will now guarantee rights to due process such as habeas corpus, which gives citizens the right to report unlawful detention, and habeas data, a legal resource that allows citizens to request personal data held by the state.

Other new guarantees of due process at the constitutional include:

  • The presumption of innocence.
  • Access to a competent, independent and impartial tribunal.
  • Access to a legal process without undue delay.
  • The right to receive legal assistance and the right to be informed about the nature and cause of the accusation.
  • The right to respectful, dignified treatment of one’s physical, mental and moral integrity; rather than being subjected to violence and coercion.
  • Expanded guarantees concerning how evidence is treated during legal proceedings, and the right to solicit the suppression of evidence if it was obtained unlawfully.
  • Expanded guarantees in terms of responding to legal or other administrative rulings.
  • The right to obtain reparation for material or moral damages.
  • Those found guilty of a crime are guaranteed protections for the exercise of their rights.

Shortcomings

For all these reforms, the new constitution also has significant gaps. Perhaps the biggest of these is the failure to establish a jurisdictional body empowered to serve as a constitutional control mechanism. This means that, according to the Cuban Constitution, neither the Supreme Court (Tribunal Supremo Popular), nor any independent constitutional court, are empowered to conduct constitutional reviews.

Moreover, on March 4, the Trump administration partially reversed more than two decades of U.S. policy toward Cuba by announcing that Title III of the Helms-Burton Act will partially go to effect, allowing for legal claims for confiscated property against a list of Cuban businesses and government entities.

Another major shortcoming has to do with the constitution’s treatment of property law—the division between personal and private property remains unclear. An additional issue is that the constitution does not impose formal limits on the power of the Communist Party of Cuba (PCC), which is again essentially recognized as the country’s most powerful body, with no constitutional obligation to obey principals such as popular sovereignty, constitutional supremacy, and legality.

Although the constitution recognizes freedom of the press, thought, conscience, and expression, its treatment of these issues is vague. There are no specific guarantees; nor does the constitution recognize the right to access and use of the information and communications technologies. More on this may become clearer once Cuba debates and passes a needed law regulating information, communications, and the media.

The revamp of the legal system

The proclamation of the new Cuban Constitution represents the end of a long process. However, the next challenge is implementing its many reforms and guaranteeing the protection of citizens’ rights.

The text contains some 60 references to complementary laws, which will have to be debated and passed at some point. This includes measures related to the electoral law, the penal code, the civil, administrative, labor, economic law, as well as the business law, especially in regard to regulation of the private sector. It’s also expected that within two years, a new Family Code addressing the issue of same-sex marriage (a proposed amendment pulled from the new constitution after it sparked a backlash) will be consulted and taken to a referendum.

It’s clear that the Cuban Constitution establishes a new type of social contract between the Cuban state and its citizenry. But how this contract plays out will depend on how protections of constitutional rights are implemented. It’s worth monitoring closely as Cuba moves to debate a slew of new laws that could very well define the new rules of the game in Cuba.

The challenges ahead

Cuba will have to grapple with these many changes in the midst of a tough economic situation, a regional crisis related to Venezuela, and the U.S. government tightening its economic embargo. The island’s economic growth has stagnated in the last year and is projected to reach no more than 1.5 percent in 2019. The austerity measures initiated in 2016 will continue, including energy and fuel cuts for state companies and the reduction of imports for consumers. In addition to the decline in oil imports from Venezuela, Cuba is struggling with the sanctions issued by the U.S.Treasury Department on April 5, targeting oil shipments from Venezuela to Cuba.

Moreover, on March 4, the Trump administration partially reversed more than two decades of U.S. policy toward Cuba by announcing that Title III of the Helms-Burton Act will partially go to effect, allowing for legal claims for confiscated property against a list of Cuban businesses and government entities. This measure negatively impacts Cuba’s already fragile economy by discouraging entities around the world from investing in Cuba.

Such moves by the U.S. government only serve to discourage the reform process and will negatively impact the island’s growing private sector. Instead, a more constructive approach— one that encourages rather than discourage internal reform—would be to normalize relations between the United States and Cuba. Ultimately, recognizing that important but gradual changes are taking place in Cuba—as illustrated by the new constitution—is of interest to both the Cuban people and the United States.

Teresa García Castro is a Program Associate at WOLA and Raudiel Peña Barrios is a professor of constitutional law at the University of Havana