Cuba’s Constitution of 1976: An Historic Setback / Dimas Castellano
Posted on April 11, 2016
Dimas Castellano, 1 March 2016 — “Two Benchmarks of the Cuban Republic”
— an article by Pedro Antonio Garcia which appeared in the journal
Granma on February 24 — makes a comparison between the 1901 and 1976
constitutions that merits further discussion. Let us look further at
three of the author’s main points.
1. It was not the Cuban Revolution that brought down representative
democracy but rather the coup d’etat, led by Fulgencio Batista on March
10, 1952, which interrupted the constitutional rhythm of the country.
Batista dismissed the president-elect, dissolved Congress and abolished
both the constitution of 1940 and the electoral statutes of 1943.
The constitution of 1940 had retained the separation of powers and the
rights recognized by the 1901 constitution while adding several others,
such as the right to organize public protests and to form political
associations which opposed the regime. It also guaranteed the autonomy
of the University of Havana, declared any attempt to prohibit or limit
citizen participation in the nation’s political life a criminal offense,
and recognized the legitimacy of opposition intended to protect the
rights of individuals. The coup d’etat that led to the suspension of
this constitution in 1952 is an historical fact. But thanks to actions
by civilian and military leaders — including Fidel Castro’s assault on
the Moncada Barracks — Fulgencio Batista restored it in 1955.
Rather than being fully restored after the 1959 revolution, however, it
was replaced with the Fundamental Law of the Cuban State, some of whose
statutes conferred on the head of state, the prime minister and the
Council of Ministers responsibilities previously held by Congress. This
modification was similar to one carried out by Batista in 1952, when he
implemented the Constitutional Statutes. The Fundamental Law remained in
effect until 1976, when the first revolutionary constitution was
adopted. This constitution was slightly modified in 1992 and became a
means of preserving the status quo when in 2002 it declared that the
political system, as it existed at that time, was irrevocable and would
no longer reflect the kinds of changes that regularly occur in any
society. Thus, the people — who supposedly are sovereign — cannot amend
this Law of Laws, which declares eternal a system that those born after
1992 as well as those yet unborn did not choose.
As a member of the constitutional assembly of 1901, Juan Gualberto Gomez
— a man Garcia acknowledges as a key figure of Cuba’s struggle for
independence — opposed an attempt to constitutionally codify anything
that might act as a brake on social change. Juan Gualberto Gomez stated,
“I consider this to be an anti-liberal document. Having been given a
specific mandate, we are taking advantage of our presence here by trying
to toy with the future, by cutting off the people’s right to tomorrow
and hindering their momentum.” He was referring to a counter-productive
and harmful attempt to legislate in place of others, something we forget
we when we deem the current political system to be irrevocable.
2. The articles of the constitution of 1901 established the principle of
independence and sovereignty, and nullified other existing laws that
undermined this principle. It excluded women from voting while extending
universal suffrage to men. It granted the President of the Republic
powers formerly held by the Spain’s colonial governor. Obviously, it
protected private property.
The constitution of 1901 endorsed fundamental rights. Article 16
restored habeas corpus: “All those detained will be released or remanded
to the competent judge or tribunal within twenty-four hours of their
detention.” Article 25 granted freedom of expression “in speech and in
writing, through the press or any other method.” Article 28 allowed
freedom of association “for all lawful purposes.” And Article 29
enshrined freedom of movement. These universal, indivisible, sacred and
inalienable rights and freedoms form the foundation for civic
participation and popular sovereignty.
The constitution of 1901 was so ahead of its time that the rights it
encompassed were not universally recognized until the adoption of the
Universal Declaration of Human Rights in 1948, almost half a century
later. Notably, the first proposal submitted to the United Nations’
Social and Economic Council for further consideration was presented by
the Cuban delegation at this constitutional event.
The Protest of the Thirteen; the peasant struggles at San Felipe de las
Uñas, Realengo 18 and Ventas de Casanova; student protests and
university autonomy; the strikers movement from 1902 until the overthrow
of Machado; the repeal of the Platt Amendment; the ultimate consensus of
various factions at the 1939 Constituent Assembly. These historic
struggles are examples of the blossoming of Cuban civil society, whose
foundations were laid by the 1901 constitution.
The article’s author points out two limitations to the 1901
constitution: denying women the right to vote and extending the powers
of the colonial governor to the President of the Republic.
Regarding the first issue, it is certainly true that the 1901
constitution did not grant universal suffrage. However, by taking
advantage of the liberties recognized in this founding document, women
founded multiple associations and media outlets, and organized meetings
and gatherings to promote their rights. In 1917 women were granted
custody of their children and control of their financial resources. In
1918 the Divorce Law was approved. The First National Women’s Congress
was held in 1923, followed in 1925 by the Second National Congress,
which led to a promise by President Gerardo Machado to grant women the
right to vote.
After the overthrow of Machado in 1933, the National Feminist Alliance
appealed to the interim president, Carlos M. de Cespedes (son),
demanding the right to vote. As a result of those negotiations in
January 1934, during the government of Ramon Grau San Martin, a
Constitutional Convention was convened which recognized the right of
women to vote and to be elected. During the presidency of Colonel Carlos
Mendieta an interim constitution was approved, whose Article 38 formally
extended the vote to women. And in February 1939, prior to the
Constituent Assembly that drafted the Constitution of 1940, the Third
National Women’s Congress called for “a constitutional guarantee of
equal rights for women.” This demand was endorsed in the constitution
adopted in 1940. As a result Cuban women legally exercised the right to
vote in the elections of 1940, 1944, 1948, 1954 and 1958.
Regarding the latter — in other words the powers granted to the
President of the Republic, which had formerly been those of the Captain
General — one need only compare the powers of an executive branch, which
are limited by legislative and judicial branches, with the powers
established after 1959, which are those of a totalitarian, one-party
state with monopoly control and ownership of the means of production.
Need I say more?
As we can see, while the republic founded in 1902 was not exactly what
Cubans had fought for, the undeniable fact is that Cuba was able to join
the international community of nations with its own legal framework,
close the door on annexation, disentangle itself from the Platt
Amendment and convene a constitutional convention, which drafted the
glorious constitution of 1940, the same constitution that provided the
legal foundation of Dr. Fidel Castro’s defense at his trial for the
assault on the Moncada Barracks.
3. By 1975, a time when country was undergoing profound transformations,
the constitution of 1940 was no longer applicable to that moment in
history. A new Law of Laws was needed for this new stage of the
revolution. A group of jurists, appointed by the political and mass
movement organizations, produced a draft constitution. In every school,
workplace, military unit, city block, farm and rural village people
discussed the document and made corrections and additions.
If Cuba was without a constitution from 1959 until 1976, it was not
necessary to draft a new constitution. Since the 1959 statutes did not
provide such a framework, what was needed was simply a constitution.
The 1976 constitution recognized rights and freedoms such as equality
under the law, suffrage for both sexes, freedom of speech, of the press,
of association and the right to protest. Where it differed from the
constitutions of 1901 and 1940 was that these rights were subordinate to
Article 5, which recognized the communist party as the dominant driving
force of the state and society, whose goal was to build socialism and
advance towards communism. This was summed up in an address by Fidel
Castro to Cuban intellectuals: Within the revolution, everything;
outside the revolution, nothing. Subsequently, articles six and seven
stipulate which organizations are to be recognized, protected and
fostered by the communist party, which led Cuba’s constitutional
traditions to suffer an historic setback.
Originally published in Diario de Cuba
Source: Cuba’s Constitution of 1976: An Historic Setback / Dimas
Castellano | Translating Cuba –