Martes, 13 de Noviembre de 2018
Última actualización: 19:32 CET

Jurists and Citizens Assess the Constitution

Representatives leaf through the revised Constitution proposal. (AP)

In the midst of the summer heat, Cuban constitutionalists - official or not - expound on the Law of Laws. Their positions vary, but all seem to concur on the importance of the matter. The bulk of the population seems to assign greater importance to individual goals linked mainly to the satisfaction of socioeconomic needs. Moreover, the public is not yet familiar with the draft containing the changes to the Constitution. Despite the prevailing "disconnection" and misinformation on the subject, some citizens still have "something to say" about the process.

In the middle of this "debate" (whose participants too often write for self-referential and disconnected contingents) the jurist Julio César Guanche offers, in two parts, a synthetic and informed analysis providing a theoretical and historical contextulization of the process of constitutional change in Cuba. In his texts the author identifies the various mechanisms (open to citizens, concentrated in the legislative bodies, made up of experts) to create or modify constitutions. He considers constituent assemblies to be the most democratic way – for their format, contents and institutions - of constitutional genesis in today's world, and recognizes that the choice between these mechanisms is more a political than a technical question, depending on the respective strength and objectives of elites and citizens.

Although the author wields the concepts of "dictatorship" and "democracy" to differentiate contemporary regimes, he avoids classifying the regime forming the subject of his analysis. While maintaining a discourse characterised by epic references to the past ("The 1959 Revolution was the ultimate glorification of constituent power in national history. The social participation unleashed gave way to a very profound political inclusion and to the diversification of spaces for participation"), this seems to coexist, without much conflict, with a recognition of a problematic present ("the power constituted since then has not carried out constituent assemblies, nor plebiscites - except the one that approved the 1976 Constitution - or referendums, nor has any popular legislative initiative been verified, as recognized by the Constitution").

The above is not entirely true, as in 2002 the Varela Project sought – in accord with the Constitution itself, and after collecting more than the 10,000 signatures required – to propose legal and peaceful changes to the country’s current order. This initiative was rejected by the authorities and, in response, a constitutional change that decreed the "irreversibility of socialism" was implemented. His reverential rhetoric regarding the conflictual origin of the current (autocratic) order and refusal to conceptualize it limit the explanatory and heuristic potential of Guanche's analysis.

The jurist Julio Antonio Fernández Estrada, meanwhile, refers in both texts to the process of constitutional (ex)change in progress, to unveil the precarious state of citizenship, ideology and the way the regime conceives of politics in Cuba. With the process just underway, the jurist notes the limited citizen participation and information regarding the conformation of the entity (commission) charged with writing the new Constitution.

In this regard, he says: "The committee approved generates some major concerns with a view to the coming months. It lacks an active specialist on constitutional issues. Among its members there are some respectable jurists, professors, and scholars in the Legal Sciences, but in no case are they current academics or researchers dedicated to Constitutional Law."In summary: loyalty was valued over the quality of the experts.

Coinciding with Guanche – and the author of these lines – that Cuba has been a land of radical revolutions enjoying broad popular support, Fernández Estrada focuses, in his second text, on the daily lives of Cubans today, pointing to the absence of "a citizenry won over by politics, because the type of experience we have had with it has taught us that it is one-dimensional, rigid, inflexible and oppressive."

Fernández Estrada focuses not on concepts, designs or general experiences, but rather on culture and the specific political attitudes of most of the population, particularly the young. With regards to them, he stresses their paucity of autonomous political involvement, as "those who harbor those interests know that the only way to participate in that kind of life is through alignment with the official policy of the Party, and its traditional confusion with the administration of the Government."

Diametrically divergent from his colleagues, and above their heads, José Luis Toledo Santander, the former Dean of the University of Havana Law School, appearing before the National Assembly of Popular Power as it debated the new constitutional text, offered nothing less than a complete constitutional revolution (involution?).

The deputy stated: "The Party is the controlling force of society and the State... which means that this Constitution will structure the State’s plan for the country, but there is a force that stands above even the State, that is the controlling force, superior to it: the Party. The Constitution cannot dictate guidelines for the Party. The Constitution cannot state, then, that the first secretaries are subordinated to the Defense Council, because that is not the function of the Constitution, nor can it set down guidelines for the Party."

The spirit of Carl Schmitt seemed to inhabit the body and language of the intellectual/official. With such a juridical affirmation, Toledo Santander endorses nothing less than the extra-constitutional supremacy of the single ruling party, stretching even the recognition assigned to the Party in the current Constitution. It is a legal precept that would delight the Ayatollah Khomeini.

What are the people saying?

In comparison to this cautious analysis, enlightened criticism, and sycophantic support, the citizens' opinions on constitutional change defy the uniformity, coherence and polarization often attributed to them. This is what is revealed by a poll recently conducted in Cuba. (When this text was sent to the editor, another poll was disseminated – similar in terms of its object, but different in terms of its methodology and scope – carried out by the Cuban Human Rights Observatory. There was not enough time to consider its ramifications and results here.)

In relation to the constitutional question, the considerable disinterest and ignorance among the populace are striking in contrast to the overwhelming consensus in the socioeconomic dimension, along with varying degrees of support for the current order, and various demands for reform.

When asked about the need to reform the Constitution, negative responses prevailed (39.4%), followed by a somewhat smaller number of respondents who favored change (34.7%), and a significant number (25.9%) without a position. Between those opposed to reform, and those undecided, the reformers are outnumbered.

Paradoxically, when asked about specific steps that would require constitutional reform for their implementation it turns out that the direct election of the President received broad support (61.4%), with only 17% against it, while 21.6% said that they did not have a position. In addition, support for the creation of other parties (45.7%) far exceeded indifference (28.9%) and opposition to the measure (25.4%).

The idea of ​​eliminating the irrevocability of socialism had significant support (34.8%), but fewer than, together, those who defended that provision of immutability (27%) and those who had no position (38.2%) on the subject.

The foregoing could indicate that, although many people actually want major constitutional changes, they, paradoxically, do not understand that the modification or substitution of the current Constitution is a necessary condition for this. This reveals, on the one hand, the population's deficiencies in terms of its legal culture, a contempt for the law (derived from the regime's manipulation of it), the scant appeal/applicability of it for everyday citizens, as well as the "cognitive dissonances" typical of a society ruled by an authoritarian regime.

Within a regime of this kind, any topic that alludes to "radical" political changes induces a considerable number of those consulted to maintain relatively conservative positions, in line with the widespread perception of what constitutes official/general opinion. At the same time, these responses suggest the existence of a potential for reform "within ...", which does not entail a total rupture with the essential framework of socialism, but that does not fit, either, within the current model's very rigid molds.

Cuba's citizens, systematically depoliticized, seem to favour, more clearly and in greater numbers, support for socioeconomic changes rather than political reform whose impact is uncertain. At the same time, there appears to be a segment of the population that is consistently pro-reform, both within a potential "renewed socialism" or under a transition to another type of political regime. Thus, all the types of discourse will find people potentially sympathetic to their proposals, provided they choose the appropriate means to reach a public whose opinions are fragmented and dynamic, realistic and circumspect, and civically emergent, but politically constrained.


To understand the characteristics of public opinion - and its connection with the political culture and institutional environment - under authoritarian regimes akin to the Cuban one, I recommend: Yunya Song, Yin Lu, Tsan-Kuo Chang & Yu Huang (2016): "Polls in an authoritarian space: reporting and representing public opinion in China" in the Asian Journal of Communication; as well as Kirill Rogov and Maxim Ananyev’s (2018) "Public Opinion and Russian Politics" in Daniel Treisman (ed.), The New Autocracy Information, Politics and Policy in Putin's Russia, Brooking Institution, Washington, DC.