News and Facts about Cuba

Of the Constitution and that constituted

Of the Constitution and that constituted
BORIS GONZÁLEZ ARENAS | La Habana | 3 Mar 2016 – 8:24 am.

Wednesday, 24 February marked 40 years since the adoption of Cuba’s
current Constitution. On the occasion of this milestone Cuba’s National
Union of Jurists organized the event “40 Years Since the Promulgation of
the 1976 Constitution: Realities and Perspectives,” which took place
over three days at the Jose Martí Memorial, in the square that the
who had it built named “Civica,” to be subsequently redubbed
“de la Revolución.”

That Wednesday morning a on the television program “Buenos
días,” Raul Isidrón, interviewed Martha Prieto Valdés, a doctor of
Constitutional Law and a Professor at the of Havana, along
with José Alexis Ginarte Gato, of Cuba’s National Union
Jurists , to ask about the holding of the academic event.

This was the second time that Professor Prieto had appeared in the media
in the last few days. On Monday, 22 February she did so on the weekly
Trabajadores (Workers) in an interview conducted by journalists Alina
Martínez and Felipa Suárez, entitled: “La horma necesaria para nuestro
socialismo (Our socialism’s necessary framework)”.

Focusing on the current Constitution, the journalists on Trabajadores
inquired about the most necessary changes to our “Law of laws.” Although
they endeavored to frame the responses in relation to the changes that
document could require based on what the Cuban government has called
“revising the economic model,” the professor distanced herself from the
narrow interests of her interviewers, pointing out the most notable
flaws in Cuba’s constitutional functioning, and stating: “the 1976
Constitution has many things I would like to see preserved, in terms of
social rights and the popular character of the State … but I must
recognize that it needs to be adapted to new conditions, that we might
need another.”

With this statement for Trabajadores Professor Prieto alluded to one of
the Constitution’s greatest weaknesses: it does not constitute an
effective reference point or framework regulating the policies adopted
by the Cuban Government. The professor: “It would never occur to me to
oppose, for example, the existence of non-agricultural cooperatives in
the country to promote development, because they are not contained in
the Constitution, because I know that they are needed.” She applied the
same criterion in her assessment of the Guidelines of the Party and the
Revolution, which are not regulations set down in Law … they were
discussed with the people, and are within the sphere of the legitimate,
because they are to overcome the crisis, to boost development, although
some measures may not be in accordance with the constitutional framework.”

However, her positive take on non-Constitutional actions by Cuba’s
Legislative and Executive divisions plays down their culpability for
passing and enforcing provisions that contravene the terms of our
charter. Professor Prieto knows full well that it is legitimate to
oppose the implementation of what the Constitution not only does not
address, but expressly prohibits. And that is legally fraudulent to
appeal to “utility” or “discussions with the people” to justify
unconstitutional decisions made by political powers. Professor Martha
Prieto is aware of this, but she also knows that she has no other way of
referring to the illegality of the State’s behavior in an official media
outlet.

The same vague criterion of “utility” or “discussions with the people”
has permitted the passing of unpopular, discriminatory and even
unconstitutional laws, such as Law 217 of 1997, which for almost 20
years has prevented Cubans from freely moving about their nation,
confining in cells and deporting people who lack official permission to
reside in a given area, a policy enforced mainly in Havana, but also in
Varadero, Trinidad, and other areas whose and commercial
activity attracts people from all over the country.

The proof that Professor Martha Prieto knows this is that in her
statements for Trabajadores she argues that the Constitution needs to be
respected and functional, to this end requiring the establishment of
“minimum and maximum limits … because if the definitions or rules are
very rigid, the room for maneuvering is reduced, for both the people, in
the exercise of their rights, and for the power apparatus in its daily
operations.”

This is the wise assertion of a specialist only warranting the
qualification that unconstitutionality is never a democratic exercise in
which that diminished “maneuvering room” requires acting in the same
way. Those who can violate the law are the powers that can act with
impunity, as those who lack this occupy positions rendering them
vulnerable to imprisonment or “cautionary sanctions.” In the case of
Cuba, Professor Prieto’s enumeration of Constitutional violations makes
clear the unaccountable entity in the political power/populace
relationship. Neither the Party’s Guidelines, nor the imprecise
implementation of non-agricultural cooperatives, nor Law 217, which
discriminates against Cubans on their own soil, are citizen initiatives,
but rather impositions invented by the political power, which can enact
them while flouting the Constitution.

This is not the first time that Professor Prieto has referred to the
relevance of the Constitution in the political functioning of a State.
In her article “Cuba, 1901-1976: Doctrinal Criteria on the
Interpretation of the Law,” published in the book A History of Law in
Cuba (Editorial [Publisher] Ciencias Sociales, Havana, 2009), she
discusses the trial of Fernando Álvarez Tabio, an important Supreme
Court who, according to the author, expressed the prevailing view
in 1959 that “conceived the Constitution as the instrument enshrining
the basic principles of political organization; therefore, if
legislation ran contrary to the Constitution, the Supreme Court was to
declare the existence of this conflict, and rule accordingly.”

It was also respect for the Constitution that inspired her words at the
end of the interview cited at the beginning of this article. There she
said: “Cuba’s National Association of Jurists is dedicated to a set of
activities and tasks to convey to the people rights and duties, but not
only theirs, but those corresponding to everyone, in the conviction that
we all must respect the Constitution.

Professor Martha Prieto’s insistence on the need to respect the
Constitution stems from the fact that this kind of respect is the raison
d’etre of any specialist in Law; something akin to respect for the value
of money, for an economist, or the value of words, for a poet. Without
this, their studies are just meaningless sheets of paper, and they
themselves are superfluous.

Source: Of the Constitution and that constituted | Diario de Cuba –
www.diariodecuba.com/cuba/1456989864_20645.html

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