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OEA/Ser.L/V/II.61 THE SITUATION
OF HUMAN RIGHTS IN CUBA CHAPTER I STRUCTURE
OF THE STATE 1.
The Constitution of the Republic of Cuba of 1976 distinguishes between
the “Supreme Organs of People’s Power”
and the “Local organs of People’s Power”.
Together, these organs constitute the structure of the Cuban State, which
functions on the basis of certain basic political principles and possesses
characteristics peculiar to it. The
Constitution also refers to the Communist Party of Cuba, to which it assigns
important functions; it also refers
to the social and mass organizations. All
of the above will be considered in the following presentation. A. SUPREME ORGANS OF PEOPLE’S POWER 2.
The Supreme Organs of People’s Power are the National assembly, the
Council of State and the Council of ministers.
The National Assembly elects the members of the Council of State and its
President, and at his initiative, the members of the Council of Ministers.
Therefore, the same person is President of both Councils (Constitution,
Article 94). The classic three
branches of government do not exist, rather there is a single organ, principally
of a legislative character, but with executive functions and ties, which is
vested with full power. 3.
The National Assembly is the supreme organ of State power, represents the
will of the people and is the only organ vested with constituent and legislative
authority (Constitution, Articles 67 and 68).
The national Assembly is elected by vote of the members of the Municipal
Assembly. As may be observed, it is
a system of indirect suffrage. 4.
The national Assembly makes all general decisions on the policy of the
State (Constitution, Article 73): development
plans, budget, planning system, monetary and credit systems, foreign policy,
state of war, administrative division, appointment of all higher officials,
supervision, modification or annulment of the acts of the other organs of power,
election of the high officials for the administration of justice, amendment of
the Constitution via referendum called for that purpose (Article 141) and
decisions with respect to the constitutionality of laws.
These powers are exercised at meetings held twice a year and that are of
short duration. At other times,
power is exercised by the Council of State.
The latter represents the national assembly and enforces its resolution
(Article 87). 5.
The Council of State substitutes the Assembly when the latter is not in
session, and acts as a legislative organ with power to issue decree laws that
are in effect until such time as they may be repealed by the Assembly.
The Council of State is, then, partly legislative and partly executive.
It legislates when it issues decree laws (Constitution, paragraph c
of Article 88), gives existing laws a general and compulsory interpretation
(paragraph d of the same), and exercises legislative initiative
(paragraph e). At the same
time, it has executive functions when it enforces the resolutions of the
National Assembly, sets the date for elections (paragraphs a and b
of Article 88), holds referenda (paragraph f), decrees general
mobilization (paragraph g), issues instructions to the courts and to the
Office of the Attorney General (paragraphs i and j), appoints or
removes diplomatic representatives, suspends the resolutions of the Council of
Ministers and of the Local Assemblies (paragraph q), or those of the
Executive Committees of the local organs of People’s Power (paragraph r),
etc. 6.
The Council of ministers is the highest ranking executive and
administrative organ and constitutes the government of the Republic
(Constitution, Article 93). It
should be pointed out that the Secretary General of the Central organization of
Cuban Trade Unions has the right to participate in the sessions of the Council
of Ministers and of its Executive Committee (Constitution, Article 99). 7.
As the Head of State and Head of Government, the President of the Council
of State and of the Council of ministers is vested with the following powers
(Constitution, Article 91): to represent the State and the Government and
conduct their general policy; to organize and conduct the activities of, and
call for the holding of, and preside over the sessions of the Council of State
and those of the Council of Ministers; to control and supervise the development
of the activities of the Ministries and other central agencies of the
administration; to assume the leadership of any ministry or central agency of
the administration; to propose to the national Assembly of People’s Power,
once elected by the latter, the members of the Council
of Ministers, or propose either to the National Assembly of People’s
Power or to the council of State, accordingly, the corresponding substitutes; to
receive the credentials of the heads of foreign diplomatic missions (a function
which may be delegated to any of the Vice Presidents of the Council of State);
to exercise the Supreme Command of the Armed Forces; to sign the decree laws and
other resolutions of the Council of State and arrange for their publication in
the Official Gazette of the Republic, etc. B. LOCAL ORGANS OF PEOPLE’S POWER 8.
In order to implement the resolutions issued by the national Assembly,
the Council of State and the Council of Ministers, at the level of provinces and
municipalities, there are the Local Organs of People’s Power:
the Provincial Assembly and the Municipal assembly. In turn, the smaller electoral districts also have their
Assembly, according to the law. 9.
These organs are to some extent legislative and executive as well.
In general, they adopt measures within their respective territory so that
plans and policies may be carried out. Article
105 of the Constitution defines their mandate. C. PRINCIPLES AND CHARACTERISTICS 10.
The principles on which the organization and functioning of the State
organs are based are those of “socialist democracy”, “unity of power”
and “democratic centralism” (Article 66).
The three principles have similar content and each is implicit in the
other. It can be stated that
“socialist democracy” assumes, according to the above-mentioned article, the
right of citizens to elect, control and dismiss those elected.
The basis of freedom for the entire functioning of the system is
established by the stipulation as fundamental principles of “freedom of
discussion, criticism and self-criticism and subordination of the minority to
the majority” (Constitution, article 66, paragraph h). 11.
It may be considered that the addition of “socialist” to the concept
of democracy does not add much to its content.
It appears to have been included in order to highlight that it is not a
traditional democracy. 12.
“Democratic centralism” is established in the provisions that
establish the system of coordination from below to above and from above to
below, in order to obtain, on the one hand, exercise of authority (centralism)
and on the other, the authenticity with which it expresses the will of the
people (democracy). 13.
“Unity of power” is achieved through the functioning of the entire
state apparatus. It is an essential
concept of the socialist state that there be a single power as an expression of
the unity on which society rests, in the last instance, the unity of the working
class, for which, in theory, there are no longer reasons for division into
divergent positions. 14.
As in all hierarchical organization, power is exercised vertically.
A system of accountability from the bottom to the top completes this
orientation. All officials can be
removed by the appropriate supreme organs.
Moreover, at the same time, power increases as it is exercised at rising
levels. It has already been said
that the national assembly is elected by indirect vote of the Municipal
Assemblies, which also elect the delegates to the Provincial assemblies. The person elected, deputy or delegate, has the duty to
render an account to his electors and he may be revoked by them (Articles 81,
112 and 113). The term of office in
the case of deputies is five years (Article 70) and two and one half years in
the case of delegates (Article 111). 15.
The organs of the people’s Power are collegiate bodies.
This is a characteristic peculiar to a system which rests on a community
concept and in which all decisions must be made, in theory, according to the
principle and participation. Thus,
the text of the Constitution always establishes collective bodies such as the
Assemblies, the Council of State and the Council of Ministers.
The latter is the Government, so that the function of governing is
not vested in the Head of State, but rather in the Council of Ministers. 16.
The position of President of the Assemblies has no particular importance.
The only presidency that plays a special role is that of the Council of
State and of the Council of Ministers. The
Constitution refers first to the Council of State itself when it defines its
powers in Article 86, and then refers to the powers of its President in Article
91. It seems clear that the Council
is superior to its President as a political organ.
This is seen, for example, where the powers of each one are set forth.
Of course, the Council is the “highest representative of the Cuban
State” (Article 87, paragraph 2). The
President, for his part, also represents the State, but is not its highest
representative (Article 91, paragraph a). 17.
With respect to its executive aspect, the President of the Council
conducts the general policy of the State. With
respect to the activity of the Councils of State or Ministers, the President
organizes and conducts their activities, but the Council Ministers is vested the
power to “organize and conduct the political, economic, cultural, scientific,
social and defense activities approved by the national assembly of People’s
Power” (Article 96, paragraph a), i.e., all of the country’s policies. 18.
In sum, the text of the Constitution emphasizes a collective system of
government, wherein decisions made by individuals are secondary or are based on
the consensus of the group’s members for implementation.
In addition, also with respect to the normative level, the three
principles stated above are fully in keeping with what is understood by
democracy, since it assumes a power of the people to delegate democracy, since
it assumes a power of the people to delegate representatives, in whom an
effective authority is vested, without prejudice to their responsibility, and,
likewise, methods of reciprocal control between powers and procedures to reach
agreement on solutions to problems. D. THE COMMUNIST PARTY OF CUBA 19.
A role of particular importance is granted by the Constitution to the
Communist Party of Cuba; to
evaluate it correctly it is necessary to refer simultaneously to articles 4 and
5. The first of these establishes
that: In the Republic of Cuba all the power belongs to the working people, who exercise it either directly or through the Assemblies of People’s Power and other organs of the State which derive their authority from these assemblies. The Power of the working people is sustained by the firm alliance of the working class with the peasants and the remaining strata of urban and rural workers, under the leadership of the working class. 20.
According to the above article, the working people is tied to the State
organs in the exercise of power. To
this should be added what is established in article 5:
21.
In accordance with Article 5, the working people is guided and led by the
working class. In addition, the
latter has a vanguard, the Communist Party of Cuba.
That political collectivity is “Marxist-Leninist” and is defined as
the “highest leading force” of society and the State. 22.
The Constitution does not indicate how the party is related to the
institutions of the State in order to carry out the task entrusted to it.
Formally, the process is explained as follows:
the Party adopts resolutions which are equivalent to duties for its
members, but which are only recommendations from the viewpoint of the organs of
the State. These instructions are
passed on to the members who use them as an instrument of persuasion of the
citizens, and within the official organs. It
is , then, the delegates or deputies to the Assembly of the people’s Power,
national or local, and the members of the mass organizations who carry forward
these measures. In the same way, in
the case of electoral acts within those organs, the process takes place without
the direct participation of the party; the members of the party, when proposing
nominations, must abstain from doing so in the party’s name.
Thus the competence belonging to the state authorities is preserved.
The resolution on the organs of the people’s Power of the First
Congress of the Communist Party establishes:
The
Party will guide, carry forward and control the tasks of the state organs, will
control the policy for promotion and training of officials who will carry out
and work toward the improvement of the mechanisms of the state, but the former
must never supplant the latter in its powers and functions.
23.
However, the terms of the above cited Article 5 makes possible an
interpretation whereby the state organs of power are subordinate to the
Communist Party, since the latter is the highest leading force of the State.
This means, therefore, that the Party in the last instance rules over the
entire society. Any conflict which
may occur within the state or society may only be resolved by the highest
leading force: the Communist Party. 24.
The Party, for its part, is made up of the members who are part of the
people. The internal organization
of the party has elements that make it possible to understand how the members,
i.e., the citizens, participate in the leadership of their party and the degree
to which that leadership is or is not authentic. 25.
The highest authority of the Communist Party of Cuba is the Congress,
which meets once every five years in order to decide “on all of the most
important matters of policy, organization and activity of the Party in general¼”[1]
The Congress elects the Central Committee which is the highest body of
the Communist Party while the Congress is not in among its important functions
is that of establishing the rules for election of the delegates who will make up
the Congress. Likewise, it elects
the members of the Political Bureau, which in turn is the highest organ of the
party when the Central Committee in full is not in session.
The Plenum of the Central Committee also elects a Secretariat,
subordinate to the political Bureau, which assists it in carrying out the tasks
required by the daily activities of the Party.
According to the Statutes of the Communist Party of Cuba it:
26.
One of the concrete applications of these principles is reflected in the
content of Article 31 of the above-mentioned statutes, which prohibits the
existence “of factions within or outside of its agencies and organizations”,
so that it is a serious infraction “to organize them, belong to them or to
know of their existence and not report it¼”. 27.
It may be seen from the above that the relation between the working
people and the Communist Party is that of a vanguard, i.e., a group which,
according to a certain consensus, takes greater risks and charts a course, under
its own responsibility. However, in
accordance with Article 4, power in the last instance remains always in the
hands of the people. What renders
this interpretation doubtful is the fact, already mentioned, that Article 5
declares the party the “highest leading force”.
It is very difficult for these statements not to be understood in
practice, in a simple way: power is really vested in the party and only
theoretically in the people. 28.
Now, as all of the terms are taken from party doctrines or statements,
and transferred without definition or study to the text of the Constitution, a
large juridical ambiguity remains, in which each person could use the official
concepts to defend a given political interpretation.
The role of judge, in a given case, would be very difficult to fulfill. 29.
As can be seen, the creation and development of political parties other
than the Communist Party is out of the range of possibility; even within it,
factions are prohibited. This
concept that excludes different political views is reinforced by a number of
constitutional norms that are true professions of doctrinal faith:
Article 4 already quoted; Article 38, paragraph a, according to
which the State “bases its educational and cultural policy on the scientific
world view, disclosed and developed by Marxism-Leninism”; Article 54 which
reiterates that the “Socialist State, which bases its activity and educates
the people in the scientific materialist concept of the universe”; for its
part, the preamble states that Cuba is “guided by the victorious doctrine of
Marxism-Leninism"” , “aware that only under socialism and communism,
when man has been freed from all forms of exploitation—slavery, servitude and
capitalism, can full dignity of the human being be attained”. 30.
It may therefore be considered that with respect to activity of
political parties, practice in Cuba is not in accordance with the doctrine of
the Commission, according to which the existence of diverse political parties is
a fundamental condition of democracy and prevents a monopoly on power by any one
group or individual.[2]
On the contrary, the articles of the Constitution provide the legal basis
which justifies the monopoly of power by the Communist Party. E. THE OFFICIAL AND MASS ORGANIZATIONS 31.
Articles 6 and 7 of the Constitution recognize, protect and promote
social organizations: Article
6 The
Young Communist League, the organization of the Vanguard youth, under the
leadership of the Communist Party, works to prepare its members as future
members of the party and contributes to the education of the new generations
along the ideals of communism, through their participation in a program of
studies and in patriotic, labor, military, scientific and cultural activities. Article
7
In
its activities, the state relies on the social and mass organizations, which, in
addition, directly fulfill the state functions that according to the
Constitution and law convene to assume.
32.
The mass organizations are part of the People’s Power.
In them, citizens organize to cooperate in the construction of socialism,
or more narrowly, to resolve the problems of the community.
These entities are related to the organs of the People’s Power of the
state, as set forth in paragraph 2 of Article 7 of the Constitution.
Thus, they are somewhat similar to the case of the Communist Party.
The organizations are present in the work of the State as an expression
of opinion, partly from outside and partly from within it.
On one hand, it is formally an organization outside the state organ which
acts, and which cannot directly influence it; on the other, it is possible that
many citizens hold positions both in the mass organization as well as in the
state apparatus. Finally, the role
of the latter is to serve the aspirations of the masses, expressed in the
respective organization, which make the relations between the state and the mass
organizations difficult to specify. 33.
Articles 6 and 7 mention only single organization.
Each of them incorporates all of the citizens who should belong to them.
There is no diversity of institutions within each sector, or in any case,
the Constitution omits reference to them. With respect to youth, it is directly stated that it is an
agency under the leadership of the Communist Party.
The final sentences of the first paragraph of Article 7 might lead one to
think that the State accepts any social grouping of the masses that arises from
the historic process, representing various sectors.
Article 53 would confirm this:
34.
References to the mass organizations in the official documents of the
party or the government indicate, however, that they are regarded as the only
ones. In fact, Cuban reality
provides no case of diverse organizations within a single social sector. F.
THE PARTICIPATION OF THE PEOPLE 35.
In accordance with the Constitution, citizens exercise power by various
means: by voting in the Assemblies
of people’s power that allows them to directly elect the leaders of the local
organs and to indirectly elect leaders to the national organs (Article 69) and
provincial organs (Article 139); by their direct participation in the mass
organizations that range from the Committees for the Defense of the Revolution
to those that include broader sectors of society; by their right to remove from
office delegates or deputies who do not duly defend their interests (Article
112); by their action as delegates to the local organs or as deputies to the
national Assembly, which authorizes them to participate even in the appointment
of members of the Council of State, the Council of Ministers and the President
of both; by their action as delegates to the local organs which places them in
contact with the immediate problems of conducting policy at the territorial
level; by their participation in the referenda convoked to settle matters of
great national importance (Article 141) by the proposal of laws when 10,000
citizens gather who are eligible to vote (Article 86, paragraph g); by the
exercise of the rights established in the Constitution, particularly Chapter VI;
by the right to demand that their above-mentioned rights be observed, for which
they may formulate petitions (Article 62) and file writs of habeas corpus
(Law of Criminal Procedure). G.
CONSTITUTIONAL LIMITS ON THE EXERCISE
36.
The provisions of Article 61 of the Constitution are particularly
significant, according to which:
37.
The importance of this provision lies in the fact that it regulates, at
the highest normative level, the effective exercise of the rights and freedoms
recognized by the Constitution for Cuban citizens, in their relations with the
state organs. It may be considered, therefore, that the content of this
article permeates all political, economic, social and cultural activity that
takes place in Cuba. 38.
To limit the exercise of freedoms if it is contrary to legal and
constitutional provisions or contrary to the existence and purposes of the
state, is justified and, in general, is included in all constitutions.
What is highly questionable is to establish these limitations as a
function of such an imprecise and at the same time comprehensive criterion such
as that of “the decision of the Cuban people to build socialism and
communism”. Interpretation of
this criterion lies outside the juridical field and is clearly placed in the
political field; it will therefore be the organs that exercise power that will
decide in each case whether exercise of freedom or a right is contrary to this
principle any possibility for the
defense of the individual vis-à-vis political power is thus eliminated, and the
arbitrary exercise of power over the citizens is thus constitutionally upheld. 39.
The existence of Article 61, the subordination of the administration of
justice to political power (see Chapter IV of this Report), the absence of
constitutional provisions to effectively regulate the exercise of the rights of
citizens in relation to State, the presence in the Constitution of numerous
professions of doctrinal faith that exclude different political concepts, which
is further reflected in the severe restrictions on the operation of divergent
political organizations, necessarily lead to consideration of the structure of
the Cuban state as totalitarian.
[ Table of Contents | Previous | Next ] [1]
Statutes of
the Communist Party of Cuba, Article 39. [2]
Inter-American
Commission of Human Rights,
Ten Years of Activities 1971-1981, General Secretariat of the
organization of American States, Washington, D.C.,
1982, p. 334.
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