HAVANA, Aug. 15th One of the problems of Cuban constitutionalism has been the lack of complementary
laws for the implementation of the Constitution. The Magna Carta of 1940, one of the most advanced for its time, and with great contributions in the framework of social and economic rights, was limited in its application due to the absence of complementary laws regulating aspects such as the limitation of landholdings, the housing problem and other aspects, which were never put into practice, until after 1959.
The same happened with the 1976 Constitution. Many of the complementary laws that were needed for its implementation were never passed. The honorable exception in this period was the constitutional text between the Constitutions of 1940 and of 1976, the Fundamental Law of 1959, which did have an extensive list of legislations.
In the early years of the Revolution, more than 1,000 revolutionary laws were enacted, many of them at a constitutional level, which was the legal instrument for the transition from the neo-colonial bourgeois Republic to the new socialist Republic.
The new Constitution of April 2019 makes more than 80 references to laws for its implementation and in the Thirteenth Transitory Provision gives the National Assembly of People’s Power (ANPP) a period of one year to approve the legislative timetable to draw up the laws that will allow the implementation of the Constitution.
These same transitory provisions give specific deadlines for certain laws or modifications of the legal framework, such as the Family Code, for which it gives two years to start the process of popular consultation and referendum of the new code; or the period of 18 months to approve the legislative modifications to make effective the provisions of Article 99, referring to the possibility of citizens having access to judicial means to claim their rights. It also grants 18 months for the Governing Council of the People’s Supreme Court to present to the ANPP the draft of the new Law on Popular Courts, as well as the corresponding proposals for modifications to the Criminal Procedure Law and the Civil, Administrative, Labor and Economic Procedure Law.
The ANPP has one year to approve its regulation and that of the Council of State and two years to approve the regulations of the municipal assemblies of People’s Power and its administration councils. On the other hand, the Council of Ministers must present its new regulation and that of the provincial governments to the ANPP within two years. The Constitution also provided that the new electoral law should be approved within six months, an aspect that was already complied with by the ANPP, since the new electoral law was approved at this year’s Assembly’s July session.
Although before April 2020 we must know what the implementation timetable of the Constitution is going to be, this article aims to point out what, in my opinion, should be the laws that should be in that timetable. In some cases, the Magna Carta specifically refers to what should be regulated by law, in others, because of the importance of the subject, I incorporate possible laws that should exist in our country.
This list is not intended to be completely exhaustive, just to give a vision of the complexity and magnitude of the future legislative performance of the ANPP to ensure that the 2019 Constitution is properly implemented:
- Family Code: This may be one of the most interesting challenges from the point of view of what should be regulated. According to the Constitution diverse types of the family must be recognized, this means overcoming the monogamist heterosexual patriarchal notion of what is known as a “classic” family and what’s most complicated is how to give all these “new” families the same legal guardianship, without any discrimination. In this case, the postponed decision on the recognition of same-sex marriages should be taken into account, and why not, try to be a little more revolutionary and recognize as marriages other relationships. The possibility of adoption for same-sex couples and for non-traditional families should also be recognized. The most complicated part of this matter is that the Constitution textually says that a referendum should be held in this regard, when the rights of minorities, in this case, minorities because of their sexual orientation, should not be subject to the rule of majorities. I personally trust in the education and civic-mindedness of Cubans so that this is achieved for the wellbeing of a community that has suffered a great deal of discrimination.
- Civil Code: The current Civil Code (Law No. 59/1987) is perhaps the worst code in force in our country from the legal and technical point of view. Although the need for a new civil code is not specifically stated in the new Constitution, it regulates new forms of ownership and the social relations that this code must regulate in terms of property, inheritance, obligations, and contracts, which have nothing to do with the 1987 code. A new Civil Code would give the Cuban legal system much greater coherence and uniformity.
- Law of Associations: The Law of Associations in force in Cuba (Law No. 54/1985) has absolutely nothing to do with the current Cuban reality. This law is the classic example of a model of state socialism, in which the possibilities of associating with lawful purposes is very strongly limited by administrative bureaucratic procedures. Hopefully, the new complementary law of Article 56 of the Constitution will enhance the possibility of the existence of organizations that are the reflection of the diverse and complex civil society of today’s Cuba.
- Law on use of public space: Although the previously cited Article 56 also recognizes the right of assembly and demonstration, in this field, there is a great legislative dispersion, and there is no high-ranking norm, such as a law, which regulates this clearly. It is necessary to have a regulatory provision that says how the public space can be used, who or which are the authorities empowered to allow it, how this request can be made, who can make it and the corresponding legal recourses in case of conflict in the application of the law.
- Law on the guarantee of Human Rights: It seems that constitutional Article 92 opens the way for a judicial procedure for the protection of human rights. It would be very positive for Cuba to have a law that creates an institution for the defense of rights such as protection, with a longstanding tradition in Latin America, or some similar mechanism.
- Law on freedom of the press: Like the 1976 Constitution, the current Magna Carta refers to a law for the regulation of freedom of the press. In the 43 years of validity of the previous Constitution, this law was never approved. It is now imperative to have this law, taking into account the plurality of possible ways of the media and how to guarantee this right, not only regarding the new ways of the media but especially within the public press.
- Law on Habeas Data: Article 97 of the Magna Carta refers to the law on how citizens will have access to their personal data and their use.
- Law on consumer protection: This has been a topic long wanted by the Cuban people, taking into account the deficient services in our country and the abuse consumers are subjected to regularly. Although the law does not solve the problem, it can lay the foundations for a favorable evolution of this right. Article 78 of the Constitution recognizes this right and refers to the law for its development.
- Law of cults: The 1976 text specifically expressed in its Article 55 that the law regulated the relations of the State with religious organizations. This law was never approved. The current Constitution does not say this specifically, it only states that persons may or may not have religious beliefs and that they are professed to respect other religions and the law. A law of cults would be very positive to regulate the relations of the State with the different religious denominations and to determine the competent organs of the State regarding relations with the churches, since at present this subject is “seen to” by the Office of Religious Affairs of the Communist Party of Cuba (PCC), which is not an organ of the State or of the government.
- Law on rendering of accounts: The Magna Carta makes eight references to the process of rendering of accounts. The rendering of accounts is one of the most important aspects of a democratic legal system and is an essential part of the concept of the rule of law. This issue would deserve a specific law or at least be regulated in detail in other laws.
- Law of revocation: In this case, there is Law No. 89/1999 “On the revocation of the mandate of those elected to the organs of People’s Power.” The new Electoral Law regulates in the Third Transitory Provision that the ANPP has one year to approve the modifications to Law No. 89. What’s most relevant in the next regulation on revocation would be that it enhances the power of citizens giving them the possibility of not only revoking the constituency delegates.
- Law to make the laws: In the legislative process, it is essential to have a law that determines the steps for the approval of a regulatory provision. In this law aspects such as the popular legislative initiative, the publicity of the process of regulatory creation could be regulated, all the way up to approving regulatory provisions.
- New Child and Youth Code: The current code was approved by Law No. 16 of 1978. After that, in 1991, Cuba became part of the Convention on the Rights of the Child. The new Constitution regulates this point in Article 86. The provisions of the current Code have almost no practical applicability.
- Animal Protection Law: Although the Constitution says nothing about it, this is perhaps one of the most necessary laws in Cuba, due to the lack of legal protection for them and the continued cases of animal violence. In this field, there have been attempts by civil society to promote an animal protection law.
- Prisons Law: Article 60 of the Constitution establishes the legal foundations of the penitentiary policy in Cuba, but unfortunately we do not have public regulations that control this activity, beyond what is stipulated in criminal legislation. Prison law is essential to implement the constitutional text.
- Law on the Law of Complaints: Due to the importance of this right and the tradition in its use by the Cuban people, it would not be unreasonable to have a law on this subject or at least to regulate it precisely in another regulatory provision.
- New Environment Law: Law No. 81/1997 “On the Environment” was for its time one of the most advanced, but the accelerated development of environmental law, the dangers associated with environmental problems, changes in institutionality and the impact of climate change require a new environmental law.
- Migration Law: This is one of the sectors with the greatest legislative dispersion, where regulatory provisions of the 1930s are in force, with many regulations of lesser hierarchy and even with internal provisions of the bodies in charge. Article 52 of the Magna Carta recognizes the right to freedom of movement and refers to the law for its regulation.
- Law on Public Transparency: Article 101, paragraph h, of the Constitution provides that “the organs of the State, its directors, and officials act with due transparency.” A law to regulate what is due transparency, how the resources of the people are used, the decision on where the resources are put and how they are administered, would be essential if what is desired is to strengthen the power of the people.
- Law for leaders: Although the Constitution says nothing on this subject, not even mentioning the word leader in that sense, it does establish many obligations and responsibilities for the different elective or designated positions. As we all know, many of these positions have certain privileges, from the President of the Republic to the director of a company. The idea would be to have a law that establishes those privileges so that the people know if those privileges that leaders have are legal or are a result of corruption.
- Law of Municipality: This is undoubtedly one of the most important laws since the municipality has to be the nucleus of democracy in Cuba and its role in Cuban society must be encouraged.
This list of 21 possible laws is not intended to be an infallible inventory. I am sure that some are missing and that some of those that are ready could merge with others to avoid excess in the creation of legal regulations.
What’s most important is that the Constitution not be only a simple paper. It must be part of people’s daily lives. For this to be so, how this process is going to be carried out is very important. The work that awaits the ANPP is huge and only six days of sessions per year don’t seem sufficient, therefore extraordinary sessions must be convened and all possible participation mechanisms must be used, so that the people are part of the process of drawing up laws, and that they not only be formally consulted but that they have the last word in a referendum.
First published in Oncuba