Constitutional update concludes

Winter 2018

In February, all Cuban citizens aged 16 years and above have the opportunity to vote in a referendum to accept, or reject, a new Constitution. Dr Lauren Collins reports

The referendum vote in February is the end of a lengthy process. On 2 June 2018, an Extraordinary session of the National Assembly (Cuba’s Parliament) created a Commission made up of 33 National Assembly Deputies (elected members of parliament) to draw up an initial draft of a new Constitution. The Commission drew on work which has been ongoing for many years and took into account previous experience within Cuba, as well as the constitutions from other Latin American, Asian, European and African States.

The first draft was discussed by the National Assembly and then by 8,950,521 citizens in 133,681 meetings held between 13 August and 15 November 2018 throughout the island.  The population of Cuba (aged 16 or over) is around 9 million. All comments and suggestions made in these meetings were meticulously recorded and analysed, and informed the second, and final, draft of the new Constitution.

As a result of the nationwide consultation, 760 changes have been made to the first draft, including modifications to 134 Articles (59.8 per cent), the addition of two new Articles and the complete removal of three. Only 38.8 per cent of the first draft remained unaltered. Here we look at the four areas which provoked the most discussion during the consultation period.

The Article which elicited the most comments (192,408 in total, 24.57 per cent of all comments) was Article 68 that dealt with marriage. The first draft defined marriage as ‘voluntary union of two legally qualified persons’ and which resulted in a poster campaign by some churches in Cuba which oppose same-sex marriage. The majority of the 192,408 comments called for the wording to be reverted to the wording of the current Constitution which is ‘Marriage is the voluntary established union between a man and a woman’.  It should be noted that 192,408 comments represent approximately 2.25 per cent of the total number of people attending the consultation meetings. The final version (now Article 82) does not define marriage and uses the gender-neutral term ‘spouses’ and says that marriage is ‘one of the forms of organization of families’ (emphasis is mine), leaving the option open for legislation of same-sex marriage, and acknowledging that in Cuba today, the family takes many forms.  A statement has also been written into the final draft that requires the National Assembly, within two years, to arrange a popular consultation and referendum on a new Family Code, which will include a definition of marriage.

The Articles relating to the President of the Republic were the second most-commented upon. The limitation of the presidential mandate to two five-year terms drew 88,039 comments, of which 74,450 wanted to remove the term limitation or extend it to three terms. Further, 24,365 wanted the age upper age limit of 60 years for presidential candidates either increased or removed altogether. The lower age limit of 35 years elicited 10,307 comments, most of which wanted to see this age limit either raised or removed. There were 12,264 proposals suggesting that the President of the Republic be directly elected by voters rather than by the National Assembly as it is done at present. The editing Commission recommended leaving the term and age limits, and the method of electing the President as they are in the first draft. 

The third most-discussed item in the draft Constitution concerned work, pay and socialist distribution of goods and services, defined as ‘from each according to their capacity, to each according to their work’. Article 31 of the draft stated that work is both a duty and a right and drew 51,414 comments most of which wanted work to be regarded as compulsory (except for those over retirement age and the infirm). Article 76 said that pay should reflect the ‘quantity, complexity, quality and results obtained’ and 12,558 proposals called for pay to reflect prices and expressed concerns that socialist distribution should be guaranteed. The editing Commission did not recommend inserting the obligation to work into to final draft but pointed out that it states that work should be the main source of income and that it is defined as a social duty. Equal pay for equal work, without discrimination, is also guaranteed.  It should be noted that the Trade Union Confederation (CTC) has its Congress in April 2019, where the issues of pay, prices and social distribution will be keenly debated and discussed, and that its National Council has the right to propose laws to the legislature (the National Assembly).  The draft Constitution also guarantees the General Secretary of the CTC the right to be an ex-officio member of the Council of State.

The fourth most-discussed topic was the proposed new Provincial Councils. The first draft included the abolition of the elected 16 Provincial Assemblies and the creation of Provincial Councils, while devolving power to the 168 Municipal Assemblies. Article 177 of the draft proposed that Provincial Councils be headed up by a Governor appointed by the President of the Republic. There were 16,188 proposals that suggested that Provincial Governors should be elected by the Municipal Assemblies within the relevant province, by the electorate of the province, or by the Provincial Council itself.  The editing Commission recommended that the Municipal Assemblies should elect the Provincial Governor and also that the Vice-Presidents of the Municipal Assemblies, as well as their Presidents (already in the first draft), should be members of the Provincial Council.

It is clear from the above that proposals for changes were of a small number relative to the number of people who engaged in the consultation. That all comments were analysed and resulted in 760 changes to the draft wording, indicates that finding consensus is important. Referenda in Cuba are always preceded by mass discussion and consultation, which allows everyone the opportunity to understand what is being proposed. Not everyone will agree with every change, but everyone will have had their views heard and taken into consideration.

Further details of the changes to the first draft of the constitution, and the processes used to analyse the comments and proposals, can be found on the website of the English language version of Granma, Cuba’s main national daily newspaper at bit.ly/CubaConstitution 


Consultation process in numbers

13 August – 15 November 2018

 

‘There is no retreat: The essence of Article 68 is maintained’

One of the most debated proposed changes to the Constitution surrounded the issue of same-sex marriage. Addressing the National Assembly on 22 December when the final text of the draft Constitution was approved, Mariela Castro Espín, MP and director of CENESEX, said that she believed the new document provided an even more advanced concept of marriage, de facto unions, and families in all their diversity. Extracts from her speech are reprinted below.

“The reformulation of the previous Article 68, which is currently contained in Article 82, should be interpreted as an advance in a process as complex as the reform of the most important norm in our social and political context.

“The constitutional reference to marriage is now in a new chapter, in which families in all their diversity are addressed. Marriage is enshrined as a social and legal institution, and is recognised as one of the forms of family organisation, but not the only one.

“With respect to the subjects of marriage, the concept of spouses is used, a legal construction that refers to the people who have formalised their marriage bond, and that in no way limits the possibility that people of the same gender can consent to marriage as a form of legal recognition of the union they have chosen to construct. Do not doubt that Article 82 erases, in constitutional terms, any binary allusion or basis in terms of gender and the heteronormativity that characterizes the regulation of marriage that exists in the text that we are trying to reform today.

“The new formulation establishes de facto unions as a novel element, without binding them to any gender; according to statistics and the opinions of experts on families in our country, this form of relationship is the most used in our society.

“Another original element is the fact that no express reference is made to reproduction as the purpose of marriage or of families, which dissociates this outdated concept that meant family dynamics revolved around offspring. This, obviously, will visualise the right of people who, regardless of their sexual orientation and gender identity, do not conceive of reproduction as the ultimate goal of their life projects, but do decide to form families regardless.

“After the referendum, and with the favourable vote of the majority of our people, in which I have every confidence, we must concentrate on the formulation of the law that will put into practice everything related to families and, in particular, to marriage.

“This law, the Family Code, should be informed by the most advanced scientific positions on the subject, and we will have to take as references the similar experiences that exist internationally, but also our own social reality. The proposed amendments to the current Family Code should articulate and guarantee marriage as is constitutionally conceived – as a plural, inclusive institution, to which all people can accede without distinction.”

 

 


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