The Association Act, according to #Otro18
When days ago lawyer Julio Ferrer Tamayo presented the document "Limitations on the right of association in Cuba," the #Otro18 campaign took a major leap forward. Devised to promote a handover of power in the people’s hands, following President Raúl Castro's announcement that 2018 would be the last year of his administration, the #Otro18 campaign promotes democratic reform of the Electoral Law and the Association Act designed to avert potential attempts to reimpose Castroist authoritarianism.
It is possible to rewrite the current legislation without this resulting in an improvement of the scant opportunities for citizen participation. And it is hard to believe that the power structure that has deprived Cubans of the exercise of their sovereignty will produce a responsible system capable of sensible solutions. And yet, the fact remains that the countdown seems to no longer to be measured in years or months, with the pressure for political change seeming to have taken on the urgency of hours and seconds. The reform measures endorsed by the octogenarian elite have only managed to spur citizens to emigrate, a trend that undermines, above all, the nation and its future, but which for now is mostly felt in the equally deleterious demobilization of civil society and the residual institutionalism prevailing in Cuba.
Julio Ferrer, an attorney at the Cubalex legal information center, who just served a six-month prison sentence for institutional contempt, which garnered him a position among the opposition's leading lawyers, and who is now awaiting a Supreme Court decision confirming or rejecting a new decision against him, was the author of the proposed amendment to the Law of Associations.
Julio Ferrer's presentation was accompanied by an analysis of the Associations Law offered by Amado Calixto Gammalame, a specialist with the Cuban Legal Association.
The document "Limitations on the right of association in Cuba" states that "the perception of the right of association totally shifted in the 20th century, coming to constitute an essential aspect of the rule of law." The author points out that Article 20 of the Universal Declaration of Human Rights enshrines the right to peaceful assembly, and that, similarly, so do the International Covenant on Civil and Political Rights, the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples' Rights.
Julio Ferrer's disquisition on the extensive presence of the right of association in the world's premier Human Rights documents serves as a preamble to the contents of the main body of the document, consisting of descriptions of Law 54 and the 1985 Associations Law and its regulations, and Resolution 53 of 1986, along with a detailed description of the attempt to legally register, years ago, the Cuban Legal Association, in which the author played a prominent role. The paper concludes with a numbered series of conclusions and recommendations.
The right of association is recognized by the existing constitution, but the article containing it, No. 54 in our Constitution, is imprecise and restricts the right of association to "manual laborers or intellectuals, peasants, women, students and other working people ... " The author recognizes that this deficiency does not appear in Law 54 or the Associations Law, which "is more precise and comprehensive in its wording than the constitutional text, clearly establishing that this right is acknowledged for all Cuban citizens."
Among the main legal limitations the lawyer identifies as affecting the right of association in Cuba is the requirement that any association, in order to be duly constituted, requires at least 30 members. Another shortcoming is the prerogative granted by the association act to government bodies to function as those certifying, before the Justice Ministry, membership in the associations one seeks to establish. Finally, there is the authority granted the latter Ministry to authorize or deny the constitution of a given association.
The most serious limitation imposed by the Associations Law is that appearing in Article 8, whose section E clearly declares that no association will be legalized when "there exists another with objectives similar or identical to the objectives or denomination one is seeking to constitute." This provision requires of registered organizations a ubiquity and scope incompatible with the very nature of an association. It also requires, in practice, anyone interested in creating an association to join those already existing whenever that which one intends to establish, in the Justice Ministry's view, overlaps with another that is already registered.
All these obstacles were appropriately employed by the legal institutions when in 2009 the Cuban Legal Association proceeded, in total accordance with the law, to request that they be enrolled in the registry of associations. In his description of the process, which spanned from 2009 to 2013, Julio Ferrer exposes the arbitrary actions of Ministry of Justice officials and other agencies responsible for ensuring compliance with the law in our country. The list extends from the violations committed by Miriam Martha García Mariño, director of the Association Registry, to Minister of Justice María Esther Reus González. In addition to them were the procedures not compliant with the law of the Provincial Court of Havana and the Popular Supreme Court, before which the lawyers appeared on numerous occasions.
As Julio Ferrer has explained, the arguments wielded by the state entities attached to the Ministry of Justice, awkwardly and straying from the law, were that the functions of the Cuban Legal Association were already covered by the National Union of Jurists of Cuba and the National Organization of Collective Legal Firms, which, if true, would preclude the Cuban Legal Association's registration. The arbitrariness of this procedure is evident given that none of these organizations is actually an association, and that Popular Court of Havana and the Popular Supreme Court failed to provide any response to the Cuban Legal Association's request for clarification of this point. This silence, in legal language, according to the lawyer, reveals nothing less than citizens' legal desertion.
The Cuban Legal Association's attempt to register itself and the role played by the Ministry of Justice - in violation of all the regulations and procedures established by the law, to reject the registration requested - are vividly illustrative of the status of the rule of law in our country. Familiar with the practice of the legal profession, the Cuban Legal Association exhausted the procedures established by the law to secure its registration, and the Ministry of Justice exhausted every possible way to violate the law, though formally existing to ensure compliance with the law and its enforcement. The situation demonstrated the existence of para-state mechanisms, and the subordination of existing institutions to them. Castroism, as an illegal system of government, is perfectly portrayed in the document "Limitations on the right to association in Cuba."
In recommendations at the end of the document, Julio Ferrer indicates the need to modify "the Associations Law, or the formulation of a new law in which the unnecessary restrictions in the current one are removed, which violate the human right to the freedom of association, as they are not grounded in the interest of national security or public order." The attorney, who was an exceptional witness to the violations committed by state agencies to prevent the legal recognition of the Cuban Legal Association, concluded that in Cuba "the rule of law does not prevail, as state authorities stand as the foremost violators of legality, in this enjoying total impunity, infringing upon, among other things, the freedom of association, legally recognized as a right of all citizens."