04 Aug IN VIEW OF A NEW CONSTITUTIONAL PROJECT: INCLUSION, PLURALISM, CONSENSUS AND DEMOCRACY
EDITORIAL # 64
IN VIEW OF A NEW CONSTITUTIONAL PROJECT: INCLUSION, PLURALISM, CONSENSUS AND DEMOCRACY
Cuba is facing the possibility of expressing its opinion yea or nay regarding a new text for a constitution which has not come about –as it should have been– from a constituent assembly freely elected by all the people to be then submitted to a referendum for final approval or rejection. Now we will supposedly be able to have the means to listen to all the amendments that any Cuban might wish to propose, after a free and responsible debate to be able to contribute modifications, additions or deletions. That is how it should be. Despite the limitations in the origin and debate of the constitutional project, we believe that we must exercise the most elementary right and duty of citizenship: to express our opinions in view of this new text proposed to us.
A true Constitution must be:
- Inclusive, that is, it shall not exclude nor discriminate against any citizen on account of any political, racial, economic, cultural, social or religious reason, nor due to gender or sexual orientation, or because of any reason inherent to the nature and dignity of a human being. This means that one cannot impose or declare as irrevocable any specific ideology or option, be it liberal, socialist, Christian Democrat, or any other model, even if it were preferred by the majority, as it would leave out minorities –placing those who think differently– against the republic. To select as exclusive a political system, regardless of which it might be, would penalize a sector of society ahead of time, outlawing differences of opinion in the process. It would be akin to declaring a religious denomination or any other form of individual or group option as the official one in the constitution.
- Pluralistic, that is, it should recognize all diversity in society. This means that the constitution should establish, as the supreme law, the institutional framework and recognition of the legal personality that guarantees equality of opportunities under the law to all the various peaceful, religious institutions, social organizations, labor unions, different forms of property, association of every stripe in civil society, as well as a range of political parties and civic movements which would allow the majority and the minority to freely organize, integrating to participate fully and as a group in the political, economic, cultural, religious and social life of the country. A multi-party system is the organic manifestation of the pluralism inherent in social coexistence. The recognition of pluralism, an indisputable structural condition of the human person, of nature and of any and all societies, is an eminent form of social justice and integral humanism. The official designation in the constitution of the existence of a single party, of a sole religious institution, of a singular type of civic organization — even if all were peaceful and respectful of the common good– would penalize before hand a sector of society– by outlawing other kinds of organizations and/or parties that had declared their aim of contributing to the good of the whole Nation. It would be similar to the constitution selecting, for example, a single rhythm as the sole expression of Cuban music.
- Consensual, that is, as in a social contract, a supreme covenant, a model of a “republic with room for all” as stated by José Martí on October 10, 1891. This assumes not only the final approval or not of the Constitution, but also direct or representative participation in the drafting of the initial text. It also implies the existence of means to freely and effectively add modifications and the creation of a legal framework, in other words, of a package of complementary laws that would allow for the correct, coherent and ancillary application of the Law of Laws. A constitution is an agreement by which the whole of society freely elects its models of peaceful coexistence based on the foremost condition of a human being, which is the legal recognition of the effective guarantee of his/her inner liberty and freedoms, in order to be able to reach the greatest possible degree of humanism and the highest degree of coexistence with brotherhood and “civic friendliness” the pillars and bases of any human community. Ignoring this contract or manipulating it in favor of a social group, party, person or sole ideology, would be a crime against the supreme dignity of any person and the inalienable rights of each citizen. Nobody and nothing can be placed above the Constitution if and when it has been drafted, discussed and approved freely and legitimately. To violate the rules of peaceful coexistence, of the agreed-upon framework, is to open the way to chaos, violence and death. The recent past is full of multiple examples to this point. To look the other way is tantamount to voluntary civic and political blindness and constitutes a grave irresponsibility.
- Democratic, that is, one that sets up a coherent general legal framework that organically guarantees the Rule of Law, with its inalienable properties: respect for all human rights for all with the inclusion in the constitution of all International Covenants regarding civil, political, social, cultural and environmental rights that have been approved by the UN which Cuba has signed but which need to be ratified by their inclusion in the text of the constitution. The Rule of Law also guarantees: the supremacy of the law over any and all persons, institutions or branches of government; the division and mutual, effective control of the three branches of the State: legislative, executive and judicial; a plural, free, transparent and internationally verified electoral system; a constitutional guarantee of defense mechanisms for human rights and transparency in governmental branches and public administration, for example: Ombudsman, Government Accountability Office, Court of Constitutional Guarantees, and independent human rights organizations. A representative and participatory democracy in search of the greatest and most effective citizen participation, be it directly or indirectly, is an eminent form of social justice and integral humanism. Ignoring the standards which the international community considers as qualifiers for a truly democratic system, fruit of centuries of thought, struggles and legislation within the community of civilized nations, would be to deny the development of humankind. Ignoring and discarding the teaching of eminent jurists from all political and religious leanings, would be akin to denying our own history and culture, very rich in its contribution to constitutional jurisprudence, going back to José Agustín Caballero, Father Félix Varela, the Assemblies of Guáimaro, Jimaguayú and La Yaya, and the constitutional delegates of 1901 and 1940.
All of this was kept front and center during the drafting of the Constitution that emerged from the inclusive, plural and democratic Consitutional Assembly of 1939, with the participation of delegates elected freely and directly by all of the people, including, of course, delegates of the Popular Socialist Party, the communist party which particiated in its draft. This only takes place when the nature of the text of the constitution is the most inclusive, pluralistic, democratic and socially just that is humanly possible. Let us hope that the haste with which this new text of the Constitution is being drafted, and the blunder of it not having been drafted by a pluralistic constituent assembly, will not end up being insurmountable limitations, so that these four pillars of any Constituion: consensus, inclusion, pluralism and democracy, may still be recognized and consecrated respecting and keeping in mind all the contributions that have been introduced and/or will be presented.At the end of the day, the citizenry, all Cuban men and women, regardless of where they live, or how they may think, believe or opine, are the sole and legitimate sovereigns. Our greatest wish is for that sovereignty to be able to be expressed freely and responsibly.
All of us have the last word. Or we should have it and exercise it.
Pinar del Río, August 4, 2018