Real Reform Requires Legal Changes

Saturday, March 2, 2013
By Douglas J. Johnston in Canada's Winnipeg Free Press:

Real reform in Cuba must start with overhaul of its legal system, a system that offers no semblance of justice.

Peaceful political organizing, dissent and protest have no legal recognition or protection whatsoever in Cuba's courts. And Raul Castro's reversion to hardline language about the sanctity of socialism is a message from on high that law reform simply isn't in the cards.

Cuba's legal system, though it has Spanish roots, by and large mirrors that of its Cold War sponsor, the former Soviet Union. After coming to power in 1959, Fidel Castro strove to build a Soviet-model system. He succeeded. And that unfortunate model continues, unreformed and unabated, today.

The result: Cuban law, especially where alleged offences against the state are involved, is short on due process, long on summary proceedings and given to unjust decisions.

Critical to a justice system worthy of the name is judicial independence. But judges in the island nation's Marxist-modeled system are state pawns.

Cuba's legal system doesn't recognize the judiciary as an independent branch of government. Although the Cuban constitution incorporates a principle of judicial independence, it also expressly subordinates the courts to the legislative branch, the National Assembly of People's Power, and the executive branch, the Council of State. Moreover, by executive fiat published in 1997, all courts must comply with "general instructions" given to them by the executive branch.

Nor are Cuban judges, by terms of office, independent of the state. They have no security of tenure to protect them from political interference. The Cuban constitution expressly allows the National Assembly to, by its vote, remove judges from the country's highest court, the People's Supreme Court. Likewise, provincial assemblies can remove provincial and municipal court judges.

Nor is removal subject to any review or inquiry process, or any rules of law. Legislatures can simply turf a judge from office at will and without reasons. Not surprising then, that there are no reported cases of a Cuban court ruling against the government in proceedings involving a political issue.

It's both permitted by law and accepted in practice that the judiciary kowtow to executive- or legislative-branch orders in cases before the courts. Nor is it unknown for judges to simply parrot pronouncements of the regime, or arguments presented by the prosecution, in rendering judgments or verdicts.

Raul Castro's announcement of his pending retirement means that for the first time a younger generation of Communist party leaders, a generation that didn't fight in the Cuban revolution that brought the Communists to power, will, come 2018, rule the island nation. Castro has already tapped Diaz-Canel Bermudez, a 52-year-old electrical engineer and former minister of higher education, as his top vice-president and potential successor.

It's a good thing for Cuba that the ruling clique of octogenarian Communists has, at last, admitted someone from a younger generation might be president.

But real change awaits someone from that younger generation seeing fit to jettison a legal system that codifies Soviet Cold-War-era notions of how a nation treats its citizens.