The first discussion about the proposal is if we are considering a new Constitution or a partial reform of the 1976 text, and furthermore, if the current one can be revoked. Those who take the latter position do not agree that, according to the reform clause, just as it was amended in 2002, a total reform is not possible, and that this would only be viable if the revolutionary Cuban political and social system were altered, which would lead to a collision.
From our point of view, the change made to the reform clause does not proscribe a total reform, nor must this necessarily imply totally re-constructing the political and social order established in the Constitution. This is about a new text, to introduce profound shifts in the structure of the state, in particular in its higher bodies. There is a broadening of the range of rights, which make it different from the current Constitution, without losing its socialist nature and essence.
Another question raised was that a constituent assembly should be convoked. From our point of view, this would directly contravene the reform clause which gives the National Assembly constituent authority. In addition to this, there is no break from the past, but rather changes within political and social continuity.
We should emphasize several general questions that stand out upon reading the draft. Reaffirmed is the socialist nature of the political, economic, and social system. This acknowledgement is not enough, but rather that identifying features of this concept are visible, to which specifics have been added that in no way devalue this.
The role of the Communist Party is maintained as a guiding element in society and the state, emphasizing its democratic character and necessary link with the people. Some positions have attempted to counterpoise the role of the Party and popular sovereignty, and the state powers afforded to each one of the bodies defined in the Constitution.
The first point to be raised is that the Party is not placed above the Constitution; as a political entity it is obligated to abide by and defend it. Likewise, in its activity, the Party does not take the place of state or administrative bodies, since these have powers and jurisdictions defined in the Constitution and by law.
Specified in the text are the humanist values of social justice and respect for human dignity that characterize our socialism. The recognition of Cuba as a socialist state of law is emphasized. This affirmation is not a simple, complacent statement. It expresses the determination and will to attain the rule of law and the supreme character of the Constitution, within the framework of a socialist state.
One item that leads to an important re-ordering is that related to regulation of the economic system. Maintained as a principle is the socialist ownership, by the entire people, of the fundamental means of production - I repeat: fundamental - and the planned direction of the economy, along with recognition of the role of the market. This is not about market socialism, but rather considering the market within the framework of a system of planning, which, of course, will need to have greater flexibility.
The recognition of private property, among the different forms of property, has attracted attention. The Constitution does not create it, it has existed. The changes introduced in the economic model, derived from agreements reached at the Sixth and Seventh Party Congresses, make viable the existence of this form of property, which goes beyond what has been called self-employment, since the possibility of hiring a workforce is in place. What is significant is that private property does not distinguish the model, or predominate. It is also necessary in certain activities, with appropriate regulation and control. The draft includes the prohibition on the concentration of property in the hands of individuals or non-state incorporated entities, with the goal of preserving “limits compatible with socialist values of equity and social justice.”
Changing the concept of marriage has also been controversial, as the current definition which addresses marriage between a man and a woman is to be abandoned, and in its place the statement that marriage is between two persons, which opens the way for the possibility of same-sex marriage.
It was decided to maintain this formulation and assume the challenge of the new concept, knowing that its inclusion could generate disagreements for cultural reasons, prejudice, and stereotypical visions that do not change overnight.
If the Constitution proclaims the full recognition of the right to equality, why should people of different sexual orientations be prevented from establishing a marriage? Must this concept continue to be anchored in visions that have already been surpassed over time, or can we modify it and recognize this right, as is occurring gradually around the world?
Different positions on this issue include preferring to maintain the concept in the current Constitution; those who favor the formulation proposed in the draft; those who accept the civil recognition of established unions but not marriage; others who support the proposal but limit the right to adoption; and lastly those who advocate a concept that includes “two or more persons.” Thus, a variety of opinions which must be evaluated, like others, with the rigor and depth required.
In our opinion, the law cannot remain perpetually enslaved to backward social attitudes, even when, at some point, it may collide with part of the social spectrum. Given its transformational mission, the law must also spur development. This is not the first time we have faced these challenges. We can recall historical conflicts about women’s right to vote, the acceptance of divorce, or, in our case, incorporating equal rights for men and women, and equal responsibility for both spouses, as established in our Family Code.
Some economic and social rights, which cannot be guaranteed immediately for economic reasons beyond the will of the state, and that would make the Constitution fictitious, are included with a gradual projection, which likewise generates some disagreement. This is the case with the right to a dignified dwelling, the right to food, the right to water, among others.
The formula used requires the state to work toward fully guaranteeing these rights, but from our point of view, these cannot be established categorically given the objective limitations on their attainment.
Local People’s Power bodies are also the object of transformation in the draft. At the provincial level, People’s Power Assemblies are eliminated, and in their place, a government including a Governor and Provincial Council is proposed. This government, led by the Governor, would additionally include the presidents of Municipal Assemblies and Superintendents in charge of municipal administrations.
This structure is considered more functional and appropriate to the characteristics of the provinces as territorial coordination entities, and looks to further strengthen municipalities. One question to be analyzed, on the basis of proposals made to date (during the consultation), is if the Governor should be appointed or elected.
Municipalities acquire greater power. It is no accident that some have seen them as “winners” in the draft. Recognition of their autonomy and stronger relations between the community and its representatives distinguish the text presented.
We must understand the document as what it is: a draft proposal. The text is not definitive. It is perfectible. It is not the work of a commission or a group. It is a collective work, and the future Constitution is being constructed with the contribution of the entire people.
Without vanity, we can affirm that we are immersed in a unique exercise of real, effective democracy, of an equally exemplary constituent process, with the people as the true protagonist. The outcome thus far is considered very positive. In addition to contributing to the future Constitution, the consultation has served to expand the people’s legal and political culture.
Once the process is concluded, the drafting commission will evaluate each proposal, including doubts expressed by our citizens. No opinion will be left out of consideration. This, of course, does not mean that every recommendation will become part of the text, since there are dissimilar and even contradictory suggestions.
After this complex, arduous work, the commission will present a new draft to the National Assembly, from where the final Constitution of the Republic will emerge, and be submitted to a popular vote. Therefore, the text agreed upon by consensus and popular participation will have a high level of legitimacy. Every Cuban can be proud of our Constitution.
Once the new Carta Magna has been proclaimed in effect, the perfecting of the country’s legal system will be required. The Constitution alone is not enough. An updating of our legal structure will be needed, and for thus an intense legislative effort.
- Excerpts from presentation by Homero Acosta, Council of State Secretary, opening the 2018 International Legal Congress.