The Constitution of any Republic is a legal rule which, dictated by the competent authority, establishes and regulates the foundations and principles necessary to organize and constitute a State, and an entire legal system, capable of securing the natural rights of the person. In order to achieve this objective, any Constitution must specify the inalienability of human rights and, in correspondence, draw up the patterns and objectives of all State activity, determine its form and its limits, its bodies and functions, the relations between these bodies, and between citizens and the State, as well as the responsibility of all of them for the realization of these purposes. This normative text is called, in addition to Constitution or Fundamental Law, Mother Law, Law of Laws, Magna Carta…
The competent authority to draw up and approve a Constitution is the people, for it contains sovereignty (the first power and origin of other social powers), although it can serve, in some cases and to some extent, representatives, who do not replace it in management and who must therefore choose and control, as is well known , representation should be only a moment of participation and not a mechanism that eclipses it. In order for a Constitution to have moral value, it must not only have been elaborated and approved by the majority, it must also be devoid,” says José Martí–1 of ideological elements, as the only true guarantee for it to become inclusive and capable of channeling all existing options in the Nation, as well as ensuring that it forces everyone and does not allow anyone to overcome or oppose it. As it is, the Constitution, the highest-ranking legal norm in a society, is the upper link of the legal order and therefore of all legal rules and rulings, and, as a consequence, also of all the social event in each of its fields and dimensions. For this reason, social, bernative and legal performance must be constrained by and depending on the constitutional precepts. The protection of a Constitution, as a higher-ranking hierarchical legal norm, is guaranteed when each citizen, no matter who it is, and all state bodies, including legislative, have to adhere to its rules. If the legislator, a representative responsible for creating the legal rules, wants to deviate from it, he must first amend it, and to do so he must feel the demands that his legal and political nature demands. It is also a fundamental element in the protection of the Constitution the control that courts can exercise, even through specialized entities, such as the constitutional guarantee courts. Another important element – and that of greater authority – is citizen control, which can be exercised in different ways. An essential requirement to guarantee the Constitution is also to be aware that its protection is only legal within the framework of the Constitution, which cannot be protected by injuring it. Anyone who seeks to protect the State by going beyond the Constitution and its guarantees destroys the Constitution, injures the state and harms the people.
Constitutions have historically taken two forms and are generally four parts in place. Its forms can be: Consetudinaria (this is the oldest form. Example: that of England, which began with the constitutional rules, Magna Carta, of John Without Land, dictated in 1215) or Written (the first written constitutions of modern times were that of the United States of America in 1787 and the French in 1791). Its four parts are: Preamble (contains a series of declaratory statements on the ethical and political objectives and values that society must perform according to its historical and political peculiarities), Dogmatic Part (develops the inalienable rights of the human person and the responsibility of the state power to realize it, as well as the relations essential to achieve it), Organic Party (establishes the state organization , the relationships and boundaries between its bodies and their functions, and indicates how persons in public office should be chosen), and the Reform Clause (it is essential to establish it, because although it is enacted on a lasting basis and with guarantees not to be manipulated, it must be ensured that it can be adapted to changing circumstances). The most substantial are dogmatic and organic. Organic establishes and regulates the instrumental elements that are designed to promote and guarantee the postulates of the dogmatic part. Every Constitution, in turn, seeks to define synthetically, in its first article, the character and essence of the ideals that it tries to materialize through its articulation, which is why all constitutional precepts must be committed to this first article and aimed at its realization.
Cuba’s constitutional history had its starting point in the first decade of the 19th century. The intelligence and integrity of not a few Cubans were present in the Courts of Cadiz, when they gave the Metropolis, at the same time as the colonies, the Constitution of 1812. Cuba was assigned the appointment of two deputies. They were elected, Andrés de Jáuregui for Havana and Bernardo O’Goban for Santiago de Cuba. The recent Constitution provided the island with the possibility of appointing deputies to Cortes, he substituted justice for military jurisdiction, established freedom of printing, instituted the Court of Auditors to purge those offered by the ministers of the Royal Treasury, among others. However, Cuba received an outside Constitution, forged with strange social, political and economic elements, culminating in an international problem that the island did not confront.
Among the proposals that Cuban deputies brought to the Constituent Courts were two draft constitutions. One separatist and one autonomist. The first was prepared by the Bayamese lawyer Joaquín Infante. The text proposes an Assembly Model State where all branches of power depend on the legislature; recognizes a fourth branch of state power: military power, given the island’s alleged vulnerability; the executive had to be collegiate; the right to suffrage would be for American owners only; establishes the separation between the Church and the State (I dreamed of a kind of national Church, in schism with the Pope); regulates some individual rights; does not recognize hereditary nobility; and sets certain national emblems. Of course, it was somewhat disconnected from the Cuban political moment. The autonomist proposal brought to the Courts was drafted by the priest José Agustín Caballero. It is a draft Constitution for the Monarchy and its Colonies, which seeks for the island a decentralized government. It proposes the existence of a Provincial Court empowered to issue local laws, an Executive Branch held by a Governor Captain General, appointed by the King and advised by an Executive Board, and a Justice Administration entrusted to an independent Corregidor, although the Captain General retains the Military Court.
There were many proposals that tried to guarantee an autonomic regime for the island. These include the projects of Father Félix Varela, Gabriel Claudio Zequeira, Antonio Mauras, the Abarzuza formula, as well as the autonomic Constitution for Cuba and Puerto Rico. Father Varela’s project, entitled Instruction for the Economic-Political Government of Overseas, was presented to the Courts in 1822. It sought to expand the powers of municipalities to collect taxes, organize public services and regulate public order. Zequeira’s project, also from 1822, is in the form of amendments to the Spanish Constitution. His postulates entail a substantial declaration: rejecting divine law in the head of state, denying ownership of the land in the hands of the Metropolis, challenging sovereign unity and the expression of common will by the central body of power. The bond that binds the Metropolis with the Colony, he emphasized, must be engendered in mutual expediency and maintained only by the colony’s deliberate manifestation of will. He aspired, of course, to a kind of commonwealth of nations, in the style of which he leads Britain today.
The reform project of Antonio Maura, Minister of Overseas, proposed in 1893, sought to give Cuba an autonomist sense. It was committed to classifying the interests of the administration into general and local. He then specified that the general interests are: war and navy, foreign relations and justice, public order and financial policy. He also said that local interests were: public works, communications, promotion, instruction and health. To propose that the general interests be the responsibility of the national government, the Metropolis, and that the premises be administered on the island. In order to implement this local administration, he proposed the establishment of a Provincial Council with administrative powers, a Governor with the power to develop the Agreements of the Provincial Council or suspend them if they contradict the law or harm the nation, and a Board of Directors on an advisory basis on general budgets and proposals for legislative reforms. In opposition to Maura, the Conservative Party of Cuba, he crystallized a new project: The Abarzuza formula. The intention was – in the name of autonomy – to distort the regional regime, so that the Metropolis could retain greater control. It was approved by the Spanish Congress on March 15 and 1895, although it failed to take effect because it was prevented from the outbreak of the Cuban war of independence.
The autonomic Constitution for Cuba and Puerto Rico, promulgated in Spain by three decrees of November 25, 1897, was the last – and perhaps the only – smart attempt to keep Cuba as part of Spain. It was based on principles of law which, in turn, sought to reconcile economic interests with politicians and doctrinals in local life. The proposal, more than an autonomous endeavor, was actually trying to decentralize the island’s administration. Many argue that this proposal held doctrinal quality and offered real possibilities for self-government, but also that it was too late. Luck, in Cuba, was already cast: independence.
The emancipation of Spain was a longing for many Cubans since before 1812, when the Constitution of Cadiz was developed and approved in Spain. We saw the proposal prepared by the Bayamese lawyer Joaquín Infante to be presented in these Constituent Courts2. However, it is possible to note the greatest efforts to develop separatist constitutions after the uprising of Carlos Manuel de Céspedes, on October 10, 1868, the date that marks the beginning of the Cuban War for Independence. The first of these constitutions took shape in Guáimaro, in 1869, to establish the first of our republics: The Republic of Cuba in Arms. This Constitution attempted to organize a Federal and Parliamentary State. He was unable to carry out the federal project, as the necessary organization and operation of departmental assemblies was impossible. Nor did he succeed, by establishing relations between the legislature and the executive, the parliamentary idea. In practice the State took forms that brought it closer to the Assembly way, as the executive was made a mere manager of the House and the judiciary would also be gidry by disposition emanating from the legislative branch.
The next constitution was La Carta Magna de Baraguá, from 1878. Antonio Maceo did not accept the Zanjón Pact and to replace then the already expired Carta de Guáimaro, he drafted a new Constitution, which was promulgated in Baraguá on March 23, 1878. This Fundamental Law established the organic unity of power, placed the entire government in the hands of four people, and strengthened the role of the head of the army, who in turn granted him the highest executive powers.
Once the new war contest began in 1895, a new constitution was established: The Fundamental Law of Jimaguayú. It took into account the experience of the previous war and that of its two constitutions, maintained the criterion on the organic unity of power and gave all powers to a Governing Council composed of the President, the Vice-President, the Secretaries, the Vice-Secretaries and the General-in-Chief (who would enjoy authority and autonomy). But it further established that every two years a Constituent Assembly should be gathered to review the work of the Government, make the necessary amendments to the constitutional text and appoint the Council. It reserved the power for it to meet, too, if special situations were presented, such as the withdrawal of Spain from the island or the provision of the Crown to negotiate peace.
The Constitution of La Yaya, in 1897, was the result of the Constituent Assembly which met, by mandate of the previous Constitution, two years after it was promulgated. It maintained the criterion of the organic unity of power, but defined more precisely and balanced the functions of the Governing Council and the relations between the Governing Council and the head of the army, and reflected, for the first time, the rights to be promoted and guaranteed by all and to which the Governing Council was due.
After hostilities between Cuba and Spain, with the participation of the United States, the island went through a brief period of absolute institutional confusion. A kind of multiconstitutionalism prevailed on the island, as 5 regimes simultaneously guided the political life of the island. The Constitution of the Yaya ruled in those places still occupied by the Liberator Army. The autonomic Constitution was still in force in the places where metropolitan authority still destriating strength. In Havana, there was a civilian government implemented by General Brooke. President Mc Kinley’s additional instructions on 18 June 1898 organized the military occupation of the eastern province of the island. The provisional constitution implemented by General Leonard Wood in Santiago Cuba, on October 20, 1898, gave order to that town. The latter, lacked an organic part, only regulated civil rights, implementing for the first time in Cuba the habeas corpus.
When the U.S. government decided to entrust Cubans with the agreement of their fates, the military governor drafted the call to elect delegates who would formulate a Constitution for Cuba, as well as study and concrete how to organize political relations between the United States and Cuba. The first Fundamental Law of the Republic, now independent, known as the 1901 Constitution, was developed and approved, not without success and in very difficult conditions. The text was drafted by Cubans under the tutelage and influence of the United States government. The experience of constitutions in arms, where assemblyism and unity of power had explicitly prevailed, as well as Republicanism through the implicit predominance of rights duties, was not taken into account. The new Basic Law established a system – like the American – liberal, lay and representative Republican, presidential and universally suffrage. In defining the rights to be protected, he took into account individual rights, not social rights. The text also included the controversial Platt Amendment.
In 1928 General and President Gerardo Machado reformed this fundamental Law. This essentially sought to strengthen its powers and expand the possibility of controlling the government for longer. On August 12, 1933, President Machado was overthrown and on the 24th of the month himself, a Decree released its reforms and re-established the Constitution of 1901. Subsequently, successive governments enacted various Statutes with slight amendments to this Law Of Laws, until in 1940 a Constitution of high legal and political status came into force.
The less conditioned and more politically experienced constituents of 1940 amended some flaws in the previous Constitution. Given the substantial changes they introduced into the political and social system, they instituted a new republic, now social-democratic in nature. Seeking a greater balance between the branches of state power, they established a Semi-Parliamentary model, and in defining the rights they sought to guarantee, they also took social rights into account. It was a well-achieved Magna Carta with a social inclination. This must be acknowledged, even though the actors of the Republic were not able to develop and enact all the complementary laws that the Constitution needed to come to life, nor did they achieve the necessary morality in the performance of the institutions that, under its mandate, were erecting.
The latter was in force until General Fulgencio Batista gave a coup d’eviction on March 10, 1952, unceded the Constitution and proclaimed a Constitutional Statutes of low legal and political quality that ceased to govern on February 24, 1955, when it again allowed the entry into force, with an almost dead letter status , to the 1940 Constitution, until December 1956, at which point it began to suspend its guarantees successively, for periods of 45 days and with the exception of very short periods.
On February 7, 1959, a Fundamental Law enacted by the revolutionary government began to govern. This law was replaced in 1976 by a Constitution that was instituted by the Socialist Republic. This text was reformed in 1992 and is still in force. Inspired by Marxist collectivism, making their dogmatic part embodied a number of guarantees, especially – and conversely many contemporary constitutions – on social rights, a positive thing if they had not felt, as an ideological consequence, the imperative to limit individual rights. The dogmatic content of the generality of constitution begins by presenting the freedoms it guarantees and subsequently is that it embodies the equalities it demands, because it is conceived that the foundation of human dignity is freedom and that only from freedom is the achievement of authentic equality possible. In our current Constitution, it appears in reverse: everything concerning equality and then freedoms was placed first, because those who drafted the text argue that equality is the foundation of human dignity and that freedom can only be the result of an equivalence already achieved.
The organic part establishes, as in all, the structures of the Power of the State. The model presented by the current constitutional text is inspired by the conventional or assembly form adopted by the former communist countries and which exists, for example, in Switzerland, a country that appears to be democratic. It raises the theory that in this model – unlike well-known models where sovereignty is exercised in a shared way by the three branches of the public power: legislative, executive and judicial – sovereignty is exercised only by the legislative one. It further submits that representatives directly elected by the people must be integrated into the legislative branch, and that they in turn elect executive and judicial officials, who are to carry out their duties under the direction and control of the assembly of Members. It also argues that for this purpose, these executive and judicial managers must have the protection of complementary laws that guarantee them not to have to submit to the possible arbitrariness of Members and to obey, at all times, only the Constitution, the laws, citizen sovereignty, and the projects and provisions that seek the realization of all this.
The reforms carried out in 1992 may have been the beginning of a process of constitutional improvement that could have placed the text at the height of the most finished doctrinal elaboration, without implying accepting selfish and materialistic liberalism, where citizens’ sovereignty actually exercises those who control financial power. Some of these signs were, modifying the first article; formal recognition, in Article 8, of religious freedom; the State’s decision, which endorses Article 14, to own ownership only of the fundamental means of production and not of all as it previously raised; recognition, through Article 23, of the right of ownership of joint ventures and of the companies and economic associations that are constituted, without any reference that excludes Cubans from this opportunity; and the possibility it offers in article 70, when it requires that Members of the National Assembly of The People’s Power must be elected by the direct vote of the citizens. But the content of the Basic Law did not continue to be profiled. It is a requirement of reality to continue the improvement of the highest-ranking hierarchical legal norm, with the aim of disembarking the text of prejudices that impede the comprehensive exercise of some of the equalities listed in the Constitution in Chapter VI, the freedoms embodied in Articles 53, 54 and 55, and the political rights it includes in chapter XIV; just to mention some possible advantages.
1) Cf. Complete works by José Martí. Volume II. Lex Publishing, Havana, 1946, page 1913.
2) Narciso López’s Constitution of Hail Maria, drafted in the United States, in the year, is for some a separatist text, but others call it an annexionist, given the intentions of the manager: to independent Cuba from Spain and then to unite it with the United States. This proposal granted legislative and executive powers to a Government appointed by the Head of the Liberator Army. It also guaranteed certain individual rights, including freedom of speech and printing.
1) Human Rights. Rule of Law. Social Development. Editorial Panapo, Caracas, 1994.
2) Constitutional History of Cuba. Infiest Ramon. Edited by Cultural S.A., Cuba, 1951.