An Anti-Imperialist March while the Rule of Law remains Conspicuously Absent in Cuba
Ahead of the 66th anniversary of the Cuban Revolution on January 1st, 2025, President Miguel Díaz-Canel called for an “anti-imperialist march” on Friday, December 20th to try to pressure President Biden’s administration to change its hardline policies towards the Cuban government and some government officials. As expected, the government and its domestic and progressive international supporters place the responsibility for the economic hardships on the island squarely on the US embargo. Ironically, government officials assume no responsibility for their mismanagement of the economy, the one-party inefficient authoritarian regime, nor for the absence of the rule of law as contributing to Cuba’s ills. Government officials, family members, and their cronies continue to enjoy their undeserved privileges demanding, after sixty-six years, more sacrifices from ordinary people to keep alive the myth of a revolution that was stillborn.
It is evident that the US embargo that has been in place against the Cuban government since the 1960s continues to be detrimental not only to the government and government officials but also to ordinary people who lack basic goods, such as food, electricity, water, and adequate healthcare. And yet, since no authoritarian regime has collapsed by the imposition of a unilateral embargo, and the citizens are frequently the ones who suffer as a byproduct of it, it is time to reconsider such a unilateral policy. Still, critics of the embargo, especially government officials, are reluctant to admit that by having no respect for the rule of law, the Cuban government is undeniably the people’s chief oppressor.
After the triumphed of the Cuban Revolution in 1959, the late Fidel Castro, whose 26th of July Movement overthrew the Fulgencio Batista’s dictatorship, promised to reestablish a multiparty constitutional democracy based on respect for the rule of law. However, once in power, Fidel did a volte face and consolidated all state powers in his person as the “Comandante en Jefe” [Commander-in-Chief] of the revolution. Castro and his acolytes just ignored their promises and the democratic values embedded in Cuba’s 1940 Magna Carta that, despite its liberal virtues, never had a fair opportunity to establish a substantive legacy of constitutional democracy on the island.
From 1959 until 1976, when a Soviet-style constitution was ratified, the Commander-in-Chief governed by decrees developing a cult of personality never seen before on the island. He did so pretending to embody the will of the constituent power of the people similar to the Führerprinzip whose will, after the Enabling Act of 1933, determined the formal and material order of law in Nazi Germany. Even after the Soviet-style institutionalization of the 1976 Magna Carta, the will of the Commander-in Chief was the law of the land to whom unconditional allegiance was demanded and expected. If not, those merely suspected of dissenting from the Commander-in-Chief’s catechism of a tropical interpretation of Marxism-Leninism, could land in prison without any respect for habeas corpus or the presumption of innocence. For many years, government officials refer to such an evident violation of human dignity as a paragon of “revolutionary justice.”
In 1998, despite ruthless persecution, arbitrary harassment, and incarceration, Oswaldo Payá, who by the way opposed the US embargo, and the Christian Liberation Movement worked on the Varela Project collecting sufficient signatures supporting a call for a public referendum based on Article 88 of the 1976 constitution to try to change its autocratic nature. They advocated respecting fundamental freedoms of speech, association, press, religion, private property, and direct election of representatives in fair and free elections, in addition to calling for the release of political prisoners of conscience. After former President Jimmy Carter visited the island in 2002 and called for an end to the US embargo but also publicly supported the referendum, the Commander-in-Chief insisted to amend the constitution to make Cuba an irrevocable socialist state with a one-party system, namely the Communist Party. Regrettably, Oswaldo Payá and another member of the Christian Liberation Movement were killed in 2012 in a suspicious car accident.
In 2019, the Cuban government spearheaded the enactment of a new constitution that was ratified without allowing for any organized opposition. In this new constitution, Cuban authorities formally recognize all the traditional freedoms mentioned above, including the rights of private property, habeas corpus, and the presumption of innocence. They nonetheless have kept the irrevocable nature of a socialist state and a one-party system. However, the constitutional text itself is inconsistent. On the one hand, Article 3 states, “In the Republic of Cuba, sovereignty resides nontransferably with the people.” On the other hand, Article 4 states, “The socialist system that this Constitution supports is irrevocable.” These two articles are incoherent. One cannot claim that sovereignty resides with the people, and consistently maintains that the socialist system is irrevocable. If sovereignty resides with the constituent power of the people, then the people have the inalienable right to revoke the socialist system if and when they choose to do so. That is to say, the people cannot bind themselves as Ulysses did in Homer’s Odyssey to prevent being enchanted by the Sirens’ song. Otherwise, they are not sovereign to begin with.
It is precisely such a fundamental incoherence that vitiates Cuba’s new constitutional text. Evidently, a necessary condition of the rule of law is primarily to avoid as much as possible any inconsistency in a constitutional text because that could send mixed signals to the citizens making them vulnerable to the arbitrary actions of government officials without recourse to the law. According to the constitutional text Article 3, the populace or constituent power has absolute power to amend the constitution, but, according to the same constitutional text, Article 4 is unamendable. Hence, the populace or constituent power is deemed to be sovereign in theory but not so in practice, which is plainly inconsistent.
Despite the propaganda campaign by government officials and their cronies about their respect for the rule of law for the soon to be ratified constitution, their cynicism is evident to reasonable and fair-minded people. The following contemporary examples illustrate the lack of respect for the rule of law on the island. In 2018, the Cuban government promulgated the 349 decree restricting artistic freedom, freedom of expression, the buying and selling of art, and the ad hoc suspension of already approved artistic activities without recourse to appeal in a court of law.
Of course, such a broad abuse of power by Cuban authorities, while claiming that they respect freedom of expression and freedom of association as stated in Articles 53 and 54 of the old 1976 Constitution makes a travesty of the rule of law. Amnesty International (AI), and members of the domestic and international cultural communities argued in favor of revoking a decree that is incompatible with respecting the rights already mentioned. As members of AI have underscored in their criticisms of the decree, the freedom of expression and association are enshrined in International Human Rights Law (IHRL). By ratifying such a draconian decree, members of those communities have publicly expressed their outrage for such a blatant violation of their fundamental freedoms. While exercising their legally recognized freedoms of expression and association, some of these young artists, writers, and poets were harassed and imprisoned. As a result of governmental intolerance, the San Isidro Movement was born. On November 27, 2020, members of the movement and their supporters stood in front of the Minister of Culture in Havana demanding that their voices be heard, including their demand for derogating the 349 decree. They were once again harassed and persecuted by government officials and their acolytes.
Moreover, by using excessive violence handling the spontaneous nationwide protests of July 11th, 2021 (a.k.aJ. J-11), Cuban officials once again showed no respect for the rule of law. They and their unconditional loyalists used disproportional violence against mostly peaceful protesters who were demanding that their constitutional rights be respected. In spite of Cuba’s new Magna Carta’s article 54 that guarantees the right of freedom of expression and article 56 that guarantees the right of peaceful demonstrations, many protesters were and still are arbitrarily incarcerated. Regrettably, they were tried in Kangaroo courts where their rights of habeas corpus stated in Article 96 and their presumption of innocence stated in Article 95, sec. c of the new Magna Carta were ignored.
By calling above-mentioned march “a march against ignominy,” Cuban officials insist, as they have done in the past, to present the US unilateral embargo as the culprit for all of Cuba’s economic ills. On the one hand, one can argue that part of Cuba’s widespread scarcity of economic goods can be explained by the embargo. On the other hand, one can also contend that government officials have used the embargo as a scapegoat to ignore the rule of law and hence the lack of due process for those who peacefully demand that their constitutional rights be respected. Despite President Díaz-Canel’s effort to try to attract foreign capital by claiming that Socialist Cuba honors the rule of law, the facts on the ground tell otherwise. With or without the US embargo, if the rule of law means anything, it means respecting the right of habeas corpus, the presumption of innocence until proven guilty in a fair court of law, and coherence in publicized laws and their application. The above examples demonstrate beyond reasonable doubt that, despite today’s march against the ignominy of what Cuban officials misdescribe as a “US blockade,” respect for the rule of law in Cuba since 1959 to the present still has a long way to go.
Vicente Medina is a professor of philosophy at Seton Hall University