The proposed new constitution

Cuba’s National Assembly hashed through and approved the draft of a new constitution last weekend, its discussion guided by Homero Acosta, a sort of Publius-without-the-pseudonym who chaired the group that researched and studied constitutional issues and produced the draft. His day job is executive secretary to the Council of State.

Acosta’s title-by-title discussion of the draft is summarized briefly in Granma and can be seen in two long videos here and here.

The draft has not yet been published, and there are, according to Acosta, more than 50 new “norms” that will have to be legislated to accompany it once it is approved.

Starting with the presidency, what’s clear is that with the Castro era ended, the Cuban leadership has decided that it wants no one older than 60 assuming that office, it wants no one in it for more than two five-year terms, and it wants executive functions distributed between a president and newly created prime minister.

These conditions would have ended Fidel Castro’s presidency in 1986 and prevented Raul’s altogether.

Beyond that, not much is clear. Why was it decided in the first place that a prime minister is needed? Will the president’s power be limited, or will the prime minister be sort of a minister of the presidency who handles day-to-day functions such as overseeing executive agencies? Will the prime minister be subordinate to the president? Perhaps the full text will answer these questions when it is published. Perhaps they will be answered once a prime minister is in office. Or perhaps we will be guessing for years, because this is a political system where very little is known about high-level decisionmaking, and there’s no evidence that this is likely to change.

In the meantime, note that the incumbent president is second-in-command of the Communist Party and the prime minister is not; the president nominates the prime minister; the president can propose legislation and the prime minister cannot; the president has the power to promote and remove high-ranking military officers and the prime minister does not; the president has exclusive pardon power; and changes in the composition of the cabinet are initiated when the prime minister proposes changes to the president. In addition, there are unspecified powers that rested with the Council of State that now go to the president. None of this fits the thesis that the new structure is intended to clip the president’s wings.

As for the National Assembly, Acosta explains that it will decide how many members it will have. For years, the assumption has been that it will down-size, following Raul Castro’s joking comment that Cuba has more deputies than China, and also to fit physically into its new chambers in the Capitolio building.

A more interesting question is not addressed: whether the legislature will actually legislate. Virtually all the economic reform laws of the past decade have been decree-laws and ministerial resolutions. The new constitution retains the Council of State’s power to legislate during the 50 weeks each year when the legislature is not in session; according to Acosta these decree-laws will be submitted to the legislature for ratification. This is important in light of the heavy legislative to-do list, which includes new laws for cooperatives and enterprises, an electoral law, changes to the penal code, and much more.

Regarding the economy, Acosta explained, the constitution will make a number of changes to reflect the ways the country has changed after a decade of economic reforms. Private property is recognized “because it exists,” he said. Trabajo por cuenta propia (self-employment) is a “euphemism,” he said, because about 100,000 persons in this category are employed by others.

He made an interesting point about property. Whereas mixed property today takes only one form, ventures between the state and a foreign partner, mixed property combinations will be possible in the future between all forms of property. That opens the door to the possibility of public-private partnerships.

Acosta also engaged in a somewhat confusing discussion in the second video linked above. He said the government’s objective is to limit concentration of property, not wealth. He cited examples of athletes, artists, or farmers who may earn high income, and his point seemed to be that high earners are going to be inherent in Cuba’s economic model, and their income should be taxed, but the government’s focus should be on preventing concentration of property. We’ll see how that translates into legislation. It may explain the prohibition soon to take effect on entrepreneurs having licenses for more than one business.

Acosta also explained with some enthusiasm the need for more foreign investment.

In the area of civil rights, it is clear that legislation is coming to permit same-sex marriages. One of Acosta’s slides explained that freedom of assembly, association, and demonstration are to be guaranteed “with lawful and peaceful purposes, always exercised with respect for public order and the law.” And under the concept of “effective citizenship,” Cuban citizens are to be treated as such in their national territory, regardless of any other citizenship they may have acquired. “Effective citizenship” may be a new term, but it is not clear that it makes any legal difference. It is already the case that if you were born in Cuba, you are treated as a Cuban under Cuban law.

The proposed constitution will be published and submitted to public debate for 90 days, concluding November 15, after which it will be subject to approval by popular referendum. If it is the same process as the one followed for the Lineamientos reform proposal in 2011, it means there will be discussions in workplaces, neighborhoods, party meetings, etc., followed by a yes-or-no vote in the referendum. Among the many issues – the changes in government structure, the opening to private property and laws to consolidate private enterprises and cooperatives, same-sex marriage – which will matter most to Cubans when they vote?