Martes, 25 de Octubre de 2016
01:20 CEST.

Of the Constitution and that constituted

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 dictator who had it built named "Civica," to be subsequently redubbed “de la Revolución.”

That Wednesday morning a journalist on the television program "Buenos días," Raul Isidrón, interviewed Martha Prieto Valdés, a doctor of Constitutional Law and a Professor at the University of Havana, along with José Alexis Ginarte Gato, President 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 tourism 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 illegal 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 judge 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.