11M, one year after the march in Cuba
Guest: Julio Antonio Fernández Estrada
Moderator: Lidia Romero Moreno
Julio Antonio Fernández Estrada (Havana, 1975): Graduated in Law from the University of Havana (UH) in 1998 and in History from the same university in 2003. Doctor in Legal Sciences, University of Havana, 2005. Professor at the Faculty of Law of the UH 1999 to 2008 and at the university branches from 2008 to 2012. He was a professor and researcher at the Center for Public Administration Studies of the UH from 2012 to 2016. He has published numerous books, academic essays and articles on legal issues.
Lidia: Hello everyone! Thank you for being here. 11M a Debate is back in one of its fancy afternoons. With us is Dr. Julio Fernández Estrada, for many Julito or Bultico, an excellent legal professional, friend and ally. Welcome!
July: Thank you very much
Lidia: I think it is important that before opening the round of questions you explain to us the difference between human rights and fundamental rights.
July: Fundamental rights are protected by the national law of a state. They can coincide with human rights, but they are called fundamental because their action and protection is national and they appear in a constitution. Human rights are universal and are set out in international documents. The fundamental rights in our Constitution now largely coincide with those enshrined in the Universal Declaration of Human Rights. There may also be an internal classification of a constitution that calls some rights fundamental over others, but this is not our case.
Lidia: The first question comes from @NimlothdeCuba: It seems to me that the newly recognized rights lack mechanisms to exercise them. Can you do an exercise of imagination and tell us how those mechanisms should work?
Julio: There are mechanisms to exercise them, but they are not sufficient or forceful. Now our Constitution is more guaranteeing. We are waiting for the procedure that will regulate our kind of protection. We have the instruction of the Governing Council of the Supreme Court, which allows for procedural defense for damages by the administration and for unjust confiscation. We have the possible protection of the Prosecutor’s Office. And the political mechanisms of complaint and denunciation, which is almost the only thing we have used for decades. I would prefer a powerful, all-rights-based amparo and an ombudsman’s office, independent of any state or party power.
Lidia: The next question is from @Rita. Julio says in the text: “It can be summarized that the only way to know what the rules of the legal game of a country are, is that the law be written, public and that it be governed by this principle of non-retroactivity of laws”. But, as I see it, even with the rules of the game that he proposes, you cannot enforce the rights. My question is: What else can we do as citizens?
Julio: I’m already sweating. I think it is important what is already being done by the social movements in Cuba, by the alternative press, by individuals in the social networks. The pressure, the training, the preparation, the study, to be alive, alive and alive, active and awake. It is necessary to know the law and the political system of Cuba. It is where we are and in that institutionality we move. There are things that can be done, that before did not exist in the rules. Petitions, claims, revocations, at the national or local level. But it is something that has to be said within a movement, a group or with the pillow. Thank you for your question.
Lidia: The next question is from @Iedoir_dr: If the 2019 constitution recognizes fundamental human rights for all people, and if all people are equal before the law, why then should we vote for family rights for LGBTIQ+ people? Isn’t this unconstitutional? In the event that it is finally decided that the family code will have to go to a plebiscite, what is recommended to vote for, if for people who are fighting for their rights it is clear that human rights are not to be put to a plebiscite?
Julio: It’s true that it doesn’t make sense. But they put it in the Constitution and people voted for that Constitution. We have to fight for it, but I think they’re going to do it. Now unconstitutionality can be asked for by only five hundred people, this is something important. What happens is that you have to sharpen your pencil with that request. Because there is nothing specific that says that this referendum would be contrary to the Constitution. The argument must be that we already have all human rights and that nothing else needs to be consulted. But the family code does not only contain human rights, that is the problem. It will have institutions of law, with all the complexity of that legal branch.
Lydia: Also a good argument would be that the Transitory makes explicit reference to marriage and is based on homophobic, transphobic criteria and so on. It does not refer to family institutions and is based on the criteria of a non-representative group.
July: Also. And all discrimination is prohibited by the Constitution. It’s as if the referendum is about marriage when they go to consult a complete code. I think we have to take advantage of the consultation, we have to go through it. If they don’t do it, it’s unconstitutional, because it’s ordered by the transitory.
Lidia: Okay, can you be more explicit about the five hundred signatures, please?
July: The new regulations of the National Assembly recently re-established a mechanism of popular petition of unconstitutionality by means of five hundred accredited signatures with certification given by the National Electoral Council. This is important and interesting because the law is there to be used.
Lidia: These questions were left to me on WhatsApp because it is difficult for a person to connect. Magic from the group OBSESSION and the SPENDRU CLUB asks: When it comes to citizenship, what characteristics make me a citizen? Does Article 1 recognize me as a citizen just because I am a person or is it a condition that has requirements? If I am a person who lives on the streets do I still have rights as a citizen or am I a person in society without citizen rights?
With reference to article 16, in what way is this manifestation of racism or discrimination repudiated in practice? Because of the subtlety with which racism often operates today, it is very difficult to prove that a person is a victim of racism. For example, in the case of gender-based violence, the ways in which this violence is expressed have been identified from the most subtle and unrecognized to the most visible, but in the case of racism it has not been stated how an act can result in a manifestation of racism that can range from the sign “Right of admission reserved” to an extremely racist popular expression said on a TV program. How, if history does not respectfully acknowledge the history of black people, is not part of the study materials, are the rights of black people defended and protected? How does one protect a citizen whose phenotypical characteristics, ancestral heritage, are part of the stereotypical criminal profile of the police? How does one protect oneself from this? Thank you for the above answer, you leave us with the desire to study it, NOW!
July: All persons born in Cuba, who have not been deprived of their citizenship, are Cuban. It doesn’t matter where the person lives, they have the same rights as anyone else. Please tell me which Article 16 you are referring to. And I can’t say anything else that I agree with what you say. It’s not something I can answer, racism has no explanation or answer.
Lidia: I’m sorry I got confused. Then I ask you why you are not connected.
Julio: It’s not about the Constitution, we’ll know later.
Lidia: Question from @JavierApoloBeat, complex issue: How do you respond effectively to an act of discrimination based on sexual orientation and/or gender identity within military units (MININT and FAR)? I’d like you to look more closely at training schools of this kind. Thank you.
July: You have to denounce it as if it were just any school. The military cannot discriminate because they are military. Military life is within the Constitution. The educational practices and content of military schools must be made public, to denounce any manifestation of discrimination and violation of the Constitution. Neither the Party, nor the military, nor the bureaucracy, nor the churches, nor the citizenry are above the Constitution.
Lidia: @antidiary92 asks: In your shared text for this meeting you say that Article 99 is the most important guarantee for the defense of our fundamental rights, but it has a cloud: the law will establish the rights protected in this way. This being so, how can we understand that the Constitution is directly applicable? My question is connected to a conference that Dr. Martha Prieto gave in 2018 for a group of communicators where she pointed out that constitutions are an expression of the Law. And if it is Law, it is of direct application. If it is law, it is a norm, and if it is a norm, it is imperative and obligatory for all. And if the law of development does not appear, the organs of the State, those that are available, have to act to enforce it above all.
July: I agree with what the professor says, she was my professor of constitutional law. Our Constitution makes more than eighty references to development laws and in some cases creates exceptions that are unconstitutional in themselves. The Constitution should be directly applicable, but it is necessary to apply it directly in the political and legal reality. The Constitution states that the law shall state which rights are to be protected by the Cuban amparo. That tells me that they will not be all of them, but maybe not. I do believe that a hard fight will have to be waged to ensure that all human rights are protected in this way.
Lidia: And they all have the same rank, there is no one superior to another.
Julio: Exactly, that should be the orientation. Especially when the Constitution itself says so. That’s why it’s so strange that it leaves that doubt.
Lidia: Can you refresh those principles that are contained in the Constitution, that is, the characteristics of those rights?
July: Article 41: inalienable, imprescriptible, indivisible, universal and interdependent. And the principles of progressivity, equality and non-discrimination also work. The former are features of rights, but for me they are also principles.
Lidia: I also believe that. And that means that if you give me one right you cannot limit others.
Julio: It’s very important that that be in the Constitution.
Lidia: Key to the defense of these.
July: You have to stop and see what you’ve won. This has been won by the people. Even if they don’t say so, the history books will say so.
Lidia: The next question is asked by the mother of @NimlothdeCuba: there is a lot of talk about the new constitution and I remember in this century the debate about the constitutions of Ecuador and Bolivia, which seemed more open. With respect to the constitutions of the other ALBA nations, is the Cuban one the most advanced in social rights?
July: It is not the most advanced. The constitutions of Ecuador and Bolivia are very broad in rights and guarantees of rights. They were not the model to be followed by our drafting commission. Those constitutions are so advanced that they have been called aspirational. Above all, to criticize their clash with the state’s own constitutional mechanisms. According to many scholars these constitutions do not effectively achieve what they declare about rights and popular sovereignty because their state political mechanisms prevent them from doing so.
The Cuban Constitution of 1976, in some elements, was broader than the one of 2019 in terms of social rights. Above all, because it was more explicit about the universal rights of education and health, as well as their particular manifestations. The 2019 Constitution makes savings in words and terms, but savings are not always good. Especially when it comes to social rights. I do not know if it is enough.
Lidia: Excellent. Can they be considered dead letters?
Julio: Not so much, because the rights are there and you fight for them. But the hyper-presidentialisms that also regulate make that fight difficult. They are constitutions with a marked imbalance towards the executive power. This has also happened now with the Cuban Constitution.
Lidia: Was the Cuban Constitution of 1976 a dead letter? What lessons did it leave us for the effective exercise of our rights as activists?
Julio: I say that it was at least dead letter. We have to try not to let the same thing happen with this one. The 1976 Constitution had popular power, which in practice gave very little power and less to the people. It had, yes, fundamental rights, but not human rights. It gave almost no guarantee of rights. But it regulated a state with structures that were almost entirely assembly-based. Now we have decisive one-person institutions: the presidency, the prime minister, which, moreover, cannot seem to be exercised by women. It is the case of a state structure enunciated for a man and which has never been exercised by a man. This is as far as our machismo goes. I am talking about the General Comptroller’s Office of the Republic.
Lidia: Thank you, Julio. One last question from @NimlothdeCuba: I was taught (in the Cuba of the 1980s) that the government is a mechanism used by the ruling class to maintain itself in power, and therefore I find it hard to believe that the disappearance of rights or the means to claim them are casual. You say: “The Cuban Constitution of 1976, in some elements, was broader than the Constitution of 2019 in terms of social rights. Above all, because it was more explicit about the universal rights of education and health and their particular manifestations.” Does that mean that Cuba is moving towards a Socialist State of Law that recognizes, paradoxically, fewer rights than the previous legal norm?
Julio: I think the same thing, that nothing is casual. I believe in the class struggle, I can’t help it. The rights that have been contracted are taken away from the workers. The rights won are victories of the people.
And the socialist rule of law must be demonstrated, with socialization and with rights; with inclusion, with political pluralism, with democracy, without discrimination. I do not believe in any neutral, observer state. I learned that too from the 1980s. A hug for everyone.
Lidia: Thank you infinitely, thank you all for being here.
Note: this debate was generated from the text of the same name, available on channel 11M.