Wretzky: Cuba, Rule of Law Reform and

Introduction

The Soviet Union has collapsed; most of the countries of the former Soviet Union have undergone democratic reforms overhauling their entire structures. Socialism, as envisioned by Marx and Engels is considered by many to be a failed experiment. The United States has emerged as the only superpower left in the world, and is exporting its democratic form of government to developing nations with the use of rule of law reforms. Much in the same way, the World Bank and the IMF act to aid developing nations via rule of law reforms.

What underlying goals are these rule of law reforms meant to promote? Does Cuba need to implement rule of law reforms in order to sustain itself in the absence of the support of the Soviet Union? Since rule of law reforms are so closely associated with international investment capital (be it in the form of trade or development assistance or global corporate investment), is rule of law reform necessary for Cuba to attract foreign investment, or can it be argued that Cuba’s Socialist government already adheres to a certain concept of the rule of law?

These questions are ones which I explore in order to try to predict Cuba’s future as a sustainable sovereign nation. This submission is based on the notion that suggests that because western perceptions of a government’s legitimacy are tied to the notion of rule of law, Cuba must somehow try to reconcile rule of law with socialist legality if it wishes to attract foreign investment. Yet, it is also important for foreign actors to understand the role that law plays in a socialist society, and be aware of the ideological differences that exist between rule of law as capitalist ideal and the goals of a socialist state.

Thesis

Although rule of law, and certain reforms associated with it can be imbued with capitalist underpinnings, rule of law in its most thin version is applicable to Cuba, and can be reconciled with this socialist state. Recent reforms implemented in Cuba since the fall of the Soviet Union can be characterized as reinforcing Cuba’s government of socialist democracy; and as strengthening the rule of law.

Ultimately, those governments that can reconcile Cuba’s socialist legality with rule of law will be sympathetic with the plight of Cuba, and its search for sustainable international monetary support. It will be the partnerships with politically minded nations that may allow Cuba to maintain its socialist ideology and have sustainable economic development while continuing to advance as a socialist society.

Part I: The Rule of Law as an ideal; the “thick” and the “thin”

Rule of law as a concept has been traced all the way back to Aristotle’s time[1]; yet trying to pinpoint exactly what the rule of law means is a difficult task, for its meaning is at best vague and obscure[2], leading to many different formulations of the concept.[3] In trying to comprehend exactly what encompasses the idea of rule of law, numerous documents have been examined, and out of the many, I found the ideas of Randall Peerenboom to be the most useful when trying to disentangle the notion of rule of law from other ideologies with which it is associated at times. I base my analysis of Cuba’s amenability to reforms on Peerenboom’s classification of rule of law into two categories—the thick and the thin.

1.1 Thin version and rule of law reform

The most basic notion of rule of law is summed up by the famous statement by John Adams, that the rule of law represents “a nation of laws, not men.” [4] Under this notion, referred to as the “thin” version of rule of law, predictability of law, limitations of coercive powers of government and an independent judiciary are key elements.[5]

This notion of the rule of law, in its barest form, seems appealing. In fact, many have argued that it is possible to reconcile this notion of rule of law to almost any type of government—that the core of the ideal—that the exercise of all power, public or private, be subject to limitation by law—is compatible with a large portion of the political economy spectrum, a spectrum extending from laissez-faire capitalism on the extreme right, to the democratic welfare state in the center, to perhaps even the socialist command economy on the extreme left.[6]

In terms of rule of law reforms, under this “thin” version of the rule of law, a legal system should be organized in a manner that is clear, consistent, and prospective.[7] Government should be structured in such a way as to prevent the arbitrary use of power of the state against the individual. Laws should be widely disseminated so that people can conduct themselves accordingly. All agree that an independent judiciary is crucial to this structure, but the actual architecture that is set in place to achieve this is not uniformly agreed upon.[8] Other corollaries to the thin rule of law are the existence of an active civil society, and a hearty legal culture.

1.2 Thick version and rule of law reform

In its “thick” version, Peerenboom sees the rule of law as incorporating a specific political framework—a framework that is tied to the ideas of capitalism and the free market.[9] This version seems especially favored by international development agencies, seeking to promote rule of law reforms in order to assist developing nations and nations in transition on the road to democracy.[10] For institutions such as these, democracy and capitalism are intertwined.[11] The specific rule of law that these institutions seek to enforce is that relating to contracts—granting and enforcing individual property rights within a state that can be relied upon by non native parties within the judicial system of the state.[12]

In theory, the “thick” version of the rule of law creates the groundwork that is purported to be necessary to promote investment in transitioning nations by granting and strengthening individual property rights; this “thick” rule of law supposedly creates a safer environment in which both local and foreign investors can do business. In principle, the rule of law reforms help to spark investment in the economies of these countries, which then is said to advance the overall state’s economy and then the overall social welfare by redistributing wealth, improving access to justice, and reinforcing individual human rights.

Many development institutions condition receipt of aid money on specific government reforms designed to open markets to capital investment, the most prominent of these being the World Bank and the IMF’s “Structural Adjustment Policies (SAP’S).”[13] It is argued that these measures lead to sustainable economic development, although there are conflicting empirical studies.[14] Adjustment policies can include cuts in government spending on health care and education, increases in the cost of food, health care and other basic necessities, mandates to open markets to foreign trade and investment, and privatization of state-run enterprises.[15] I tie these SAP’s to the notion of the “thick” rule of law because policies such as these are often promoted under the guise of democratic reforms, and therefore can be described as containing a specific political framework, that structures reforms in order to alter the current governmental organization. These reforms are infused with a specific political agenda, which is imposed in the name of the rule of law.[16]

1.3 International Monetary Support and rule of law

It is uncontested that Cuba is in need of some form of international investment if it is to continue to be a viable state. As a result of the collapse of the Soviet Union, and the continued blockade of the island by the United States, Cuba has been left without any major source of international trade or other financial support. Cuba now has to find new trading partners. Much international investment is tied to the conditionality and political agenda as described above. All indications are that Cuba, under its existing regime is unwilling to alter its ideological foundation in order finance itself. In 2002, Cuba added a paragraph to article three of the 1976 constitution which states:

Socialism and the revolutionary political and social system established in this constitution [. . .] having demonstrated its capacity to transform the country and create an entirely new and just society, is irrevocable, and Cuba shall never revert to capitalism.[17]

Given this political position, it seems unlikely that the Cuban government, as it is today, will voluntarily submit to the types of capitalistic market reforms that are contained within the “thick” notion of the rule of law, and one can predict that it will not be seeking aid from such institutions as the IMF or the World Bank.

Another consideration that plays into this prediction is Cuba’s history as a colony of Spain and abuse of power by colonial governments.[18] The socialist revolution that gave priority to the rights of the collective (as opposed to the individual) must be understood within this context. It seems unlikely that under the current government, individual property rights will overtake the notion of communal values; for this reason, trying to implement a “thick” version of rule of law reform in Cuba will not succeed any time soon.

The “thin” version of law as described supra, and reforms associated with it are considered less with capitalist agendas and are mainly concerned with strengthening institutions to ensure that its standard of a government of laws not men is met.[19] Reforms undertaken pursuant this “thin” version of law are more aimed at strengthening institutions such as the judiciary and general democratic participation and debate in the governing process.[20]

In parts III and IV, I discuss reforms that Cuba has undertaken, and query whether the impact of these reforms can be described as strengthening rule of law in Cuba. As a preliminary matter, it is important to understand the role that socialist legality plays in Cuba.

Part II: Role of law in Cuba:

Understanding the role that law plays in Cuban society is important to the discussion of whether “rule of law” reforms are necessary for this state in order to attract international investment. Cuba is socialist, and the role that law plays in society is different from the role of law in capitalist society.[21] It has different goals, and freedoms associated with it. Rule of law is more closely associated with protecting the individual from the power of the state, whereas socialist legality is more associated with protecting the community and promoting communal values.[22]

Many criticisms levied against Cuba are based solely on the fact that Cuba has accepted socialist ideology, and do not look beyond this. In other words, critics cannot accept the principles and ideology that the Cuban constitution is based on and structured to promote. This is an ideological dispute. It is this rejection of the choice of the Cuban people to organize their society in a collective manner that has motivated a large amount of criticism against Cuba, mainly from the United States government and Cuban exiles in Miami. Simply put, they believe that Castro is a corrupt dictator, with the government serving as a veil for Castro’s unrestricted power.[23]

It is claimed that the government of Cuba is nothing less than a totalitarian dictatorship, under the thumb of Fidel Castro for the past 46 years;[24] that the Cuban government does not respect fundamental juridical notions such as “the rule of law”, and therefore, cannot be seen as legitimate.[25] There is currently a vibrant debate as to what reforms will be necessary to restore Cuba to rule of law in a post Castro era.

2.1 Socialist legality

The role that law plays in a socially organized community has different understandings. According to Marxists beliefs, there is no room for “law” at all. Under this theory, once society moves towards real community interests, the role of law will “wither away”.[26] The reason for this position stems from the fact that in Marx’ view, the role that law plays in capitalist societies is to maintain and protect the existing (unequal) status quo; that of a society based on class. Law in this situation only protects those with power.[27] Pure Marxists claim that it is this system that leads to many of society’s ills, including crime and poverty.[28] Once this class structure is erased, and the laws that uphold it are abolished, there is no need for this superstructure, for it only serves to protect the institution which created it, and it addresses only the problems that stem from its implementation.[29] According to Marxist theory, once the revolution has done away with the structures that create inequality, the law will cease to be necessary.[30] This view is completely utopian, and has proved to not be true (although it does perhaps account for the abandonment of legal institutions in Cuba during the period right after Castro’s revolution as described in section 5, infra).

Other socialist thinkers have reflected on this view, and have reached more of a compromise position. This position recognizes that law is necessary, at least to the extent that the society in question has not yet reached the socialist ideal.[31] It is under this understanding that Cuba seems to have organized its legal system. In Cuba, the role of law is purposive; it is used as a tool to implement and reinforce the goals of the revolution.[32]

Cuba describes itself as a social democracy that adheres to the principles of socialist legality.[33] Under the idea of socialist legality, the law acts as an instrument for reforming society.[34] The underlying idea is that the process of revolution is one that is always evolving, using the law as an instrument to effect this change. [35] Under this notion, law is constantly striving to perfect itself in order to effectuate a specific social goal, that of transforming society towards socialist ideology.[36] Thus in Cuba, the law is dynamic and substantive. It is law that seeks to shape social behavior in a way that strengthens the collective as a whole. Under this framework, the rights of the individual are necessarily in tension with the rights of the group where individual rights encroach upon the rights of the collective.

In contrast to capitalistic democracy, which serves to protect individual property interests, Cuban socialist legality serves to protect the rights of the collective. It is normal then, that many of the individual’s “fundamental rights” guaranteed by Cuba’s constitution are limited to the extent that they interfere with the rights of the group. For example, Chapter VI of the Cuban Constitution of 1976 establishes the “Fundamental Rights, Duties and Guarantees” in Articles 45 through 65, and contains such rights as the right to freedom of speech and freedom of the press; but the central characteristic of the legal system is the supremacy of the Socialist State, and the constitution reflects this. The Socialist State restricts the exercise of any right and any freedom at that point where the exercise of such rights or freedoms is contrary to its expressed goals. This restriction is set forth explicitly in Article 61, which reads as follows:

None of the freedoms which are recognized for citizens can be exercised contrary to what is established in the Constitution and the law, or contrary to the existence and objectives of the Socialist State, or contrary to the decision of the Cuban people to build socialism and communism. Violations of this principle are punishable by law. [37]

Socialist legality is seen as dynamic; the goal of the revolution is to use the laws of the nation to reach a more “pure” social democracy.[38] The process is considered an ongoing one, slightly paternalistic, in that it grants more participation in governance as the educational and cultural level of the masses is uplifted. The idea is initially, a strong, strict government is needed to guide the people, and as society is changed and the population becomes more accustomed to popular participation in the democratic process, more rights and opportunities for public participation are granted.

Socialist society is strengthened by providing the tools that a society needs in order to be participants in the democratic process. This is why education is so important in Cuba; it is seen as a major tool for strengthening democracy. The remarks of Fidel Castro in a recent speech reflect this idea. “[T]hey say that there, in the United States, they have democracy, and I wonder, if millions of people are illiterate, how can they make an informed decision when it comes to voting?[39]

Yet if Cuba is to live up to its ideal of socialist democracy, the restrictions on freedom of the press and other rights such as mentioned above theoretically should be lifted as the goals of the revolution are met. This development has been slow to come in Cuba.[40] It is a criticism that is valid, yet at the same time, can be understood within the context of Cuba’s position vis-à-vis the United States. The United States government spends millions of dollars to promote its agenda of capitalist democracy in Cuba.[41] The Castro Government sees this as a violation of its sovereignty, and as a threat to national security[42]. In response to criticism of the treatment of Cuban dissidents on 2003, President of the National Assembly, Ricardo Alarcón De Quesada responded:

Cuba is defending itself from someone trying to attack or undermine its sovereignty by organizing, directing and financing groups of traitors while intensifying an implacable economic war and threatening to destroy the nation.[43]

As we are well aware, it is a common occurrence for governments to limit civil liberties in times of threat, even in our own country.[44]

Part III: Structure of the Cuban Government & Recent Reforms

3.1 Single Pillar Structure

The structure of the Cuban government is laid out in chapters nine and ten of the Cuban Constitution. Its structure is that of a single pillar, with the National Assembly of People’s Power (NAPP) being the “supreme body of state power.” The Council of State, which acts as the executive committee of the NAPP, is elected by the NAPP and comprises the president, his vice presidents and “twenty three other members.”[45] Fidel Castro is the president of the Council of State, and president as well, of the Council of Ministers, the highest administrative authority in Cuba.[46]

Although it is stated in the constitution that the Council of State is “accountable for its action to the [NAPP], to which it must render accounts of all its activities;”[47] the fact that the President of the Council of State is also the head of the NAPP[48] and the President of the Council of Ministers,[49] renders the extent of this accountability questionable. Until reforms are enacted that allow for more transparency as to the functioning of these highest bodies of power, Cuba’s governing process will continue to be suspect.[50]

Frankly, it is unclear whether the Council of Ministers is a body that is distinct from the Council of State, or whether it is in fact the same thing. Both bodies seem to be composed of the same members; various constitutional provisions describe similar duties and powers.[51] Reforms allowing more transparency of the deliberative procedures of these institutions would serve to add a greater amount of legitimacy to these bodies. One thing that is clear is that the President of the Council of State is the apex of the single pillar structure of the Cuban government.[52]

This single pillar structure is taken from the Marxist-Leninist ideology which, instead of having a tri-partite system, adopted the idea of a strong central government, called the unity of power principle.[53] This means that actual decision making is centralized in a few hands while, in theory, all power, is ultimately traced back to the election of the Municipal Assemblies.[54] As described supra, the notion of socialist legality presumes that at the start of the revolution process, the vanguard will oversee the cultural and educational uplifting of the masses. A strong government with power that is centrally located is viewed as necessary to implement this transformation.

There are no adversarial political parties in Cuba—just the Communist Party.[55] The notion of adversarial political parties is seen as antithetical to the socialist legality, in that it serves to undermine the notion of a social democracy.[56] Adversarial politics are seen as undermining the socialist notion of community and universal values by setting people against each other based on individual interests, and also leading to a system that requires individual candidates to seek funding for their bids for election, leaving politically minded people who are unable to raise large amounts of cash out of the democratic process.[57] Cubans see their system of pluralism as more democratic than systems that are based on multi party elections.[58]

The Communist Party plays no formal role in the nomination of candidates.[59] The role that the Communist Party plays is more of a rudder, directing the broad policies of society.[60] They have no legislative initiative or authority.[61] It is undeniable though, that the Communist Party in Cuba plays an important role in the country. Mass organizations are an outgrowth of the communist party, not an actual part of the party, but closely linked to it. These organizations serve as grassroots groups that seek to promote their own agendas within the government. So although there is just one Communist party in Cuba, groups such as the Federation of Cuban Women (FMC), the National Association of Small Farmers (ANAP), and the Confederation of Cuban Laborers (CTC) are groups that seek to promote their specific agendas within the government. The numerous mass organizations also function as an official means of communication between the government and the people as they convey public policies to the citizenry.[62]

One interesting aspect of the NAPP is that they are only scheduled to meet twice a year. This allows the members of the National Assembly to maintain their regular employment; in fact, members of the National Assembly do not have offices or staff to assist them. This would seem to remove the existence of professional politicians from the equation; a construct that is criticized by many scholars, one going so far as to label them “an oligarchy with a particular class-interest.”[63]

As a result of reforms instituted in 1992, the National and Provincial Assemblies are now elected by direct popular vote.[64] The NAPP is responsible for among other things, discussing, reviewing and instituting new legislation.[65] Between meetings of the National Assembly, the Council of State is authorized to enact legislation, called decree-laws, which take effect immediately, but are submitted to the NAPP for ratification or revocation at the next scheduled session of the Assembly.[66]

3.2 Criticism of the Single Pillar Structure

Critics of this regime point to this single pillar structure as being one of the primary problems with regard to rule of law, in that is grants too much power in the hands of one small group, the Counsel of State, with the NAPP serving only to “rubber stamp” decisions made by this body. It is true that power is centrally located, yet, as explained supra, this is in keeping with the principles underlying socialist legality.

The thin rule of law is not tied to any particular form of government structure, and in theory, it is possible to reconcile this single pillar structure with the concept of rule of law. In the case of Cuba it is not the single pillar structure of the government that potentially impedes the rule of law, but the lack of transparency of the functioning of the highest offices of government. This is an area that is in need of reform if Cuba is to move toward the concept of rule of law as understood within socialist democracy.

3.3 Recent Reforms

Reforms undertaken since the fall of the Soviet Union have increased popular participation in government, so that among other things, this “rubber stamp” scenario does not occur. Since 1998, the NAPP maintains nine permanent commissions that meet throughout the year where issues are debated, and proposed legislation is reviewed and drafted.[67] The commissions are also empowered “to convene meetings with officials at any level of the political and economic system, hold public hearings, undertake studies,” among other things.[68] Reglamento de la Asamblea Nacional, article 102 requires all members of the NAPP to report periodically to their respective Municipal Assemblies, which promotes discussion and debate at many different levels of government.[69] The Fourth Party Congress of 1991 reaffirmed its commitment to socialism, but criticized "past tendencies to mechanically copy methods and structures from the Soviets and Eastern Europe,"[70]which lead to unprecedented openness and debate about political structure and economic policy.

These reforms can either be seen as a hollow gesture to give the appearance of democracy, or the reintegration of popular participation in government policy can be recognized as the fulfillment of socialist legality. It has been 46 years since the revolution, the literacy rate of the population is at about 96.8%,[71] and the people are educated about their form of government, and the goals that it is meant to realize. Through the use of debate and referendums sponsored by the mass social organizations, the population has become accustomed to group participation in decision making.

According to Debra Evenson, an attorney and scholar of the Cuban legal system, the national organizations have had increasing influence over policy and legislation since the 1990’s. As one example of this, she points to a draft proposal on modifying the social security law that was shelved as a result of union opposition.[72] Another example she gives is that of the FMC participating in the drafting of the Family Code.[73] It would not be a stretch to think that the reforms allowing for more popular participation in government are a real movement towards the ideal of socialist democracy, and have effectively broadened the scope of popular participation, but whether such broader participation is undermined by an essentially “closed at the top” bureaucracy remains an open question.

Part IV: The Courts and Judiciary

Corollary to the rule of law is a strong independent judiciary. Reforms aimed at this institution serves to legitimize the legal system in the eyes of the populace, and those in the international community.[74]

Since the revolution, numerous reforms have been instituted in the courts and the legal training of judges. The courts suffered greatly at the beginning of Castro’s government. A large portion of this decline was the reorganization of the government from a capitalist to a socialist form of government; the fallout of the revolution. Additionally, as stated supra, in section 2.1, pure Marxism does not see much use for law and the courts, and it was perhaps thought that these institutions would “wither away” as a result of the transformation to socialism.

Since the first few years of the revolution, once the change in regime was complete, the Governing Council of the Supreme Court and other governmental bodies have worked together to analyze the judiciary with a critical eye, introducing reforms aimed at strengthening the independence of the judicial system, educating judges, and raising the quality and availability of legal services.

From a research point of view, finding information on the various administrative and legislative reforms in Cuba has been more than extremely difficult. Although the bulk of many of Cuba’s laws are available via the Gaceta Oficial,[75] which is charged with disseminating the law to the public and the profession, I do not read Spanish easily. I therefore rely heavily on the work of Debra Evenson, “Law and Society in Contemporary Cuba,” second edition, chapters three and four, (and the services of Alta Vista “Babel Fish;” an online translation program).[76]

4.1 Structure of the Judicial System

At the top of the structure of the judicial system in Cuba is the Supreme Court. The role and powers of the Supreme Court have undergone numerous reforms since they were re-established by law in 1973. This first law, Ley No. 1250, can be seen as Cuba’s first step toward institutionalizing the revolutionary regime.[77] In the wake of the revolution, more attention was given to the People’s Popular courts (not a professional organ), and the Revolutionary Courts, and the judiciary was left in tatters. The law of 1973 reorganized the structure of the courts and separated the office of the Attorney General administratively from the court system. It was this law as well, that introduced the concept of lay judges into the Cuban juridical system, which is discussed in section 5.1(a)(ii) infra.

In 1977, after the adoption of the new Cuban constitution, the courts were overhauled again. An important aspect of this reform was the change in the way the judges were appointed. Prior to this law, the Council of Ministers appointed the Supreme Court judges. In removing this power from the hands of a smaller, potentially less democratic body, and allowing the NAPP to elect the members of the Supreme Court, the process was made more transparent and accountability was increased, although the Ministry of Justice was still responsible for training and screening judicial candidates, and nominating them to the legislature.[78]

The 1980’s provided even more strengthening of the court system. During this period, the Governing Council of the Supreme Court began to look critically at their newly organized system, and worked with the Ministry of Justice to address problems such as a poorly trained judiciary, and started pinpointing problems in the day to day functioning of the courts.[79] During this period and into the 1990’s, critical examination of the functioning of the court system was ongoing.

Ley No. 70, Ley Sobre los Tribunales Populares was enacted in 1990. Evenson states “Its express goal was to improve further the court system [….] and to develop mechanisms for the continuous evaluation of the effectiveness of the system.”[80] This reform was followed by another strengthening reform, Ley No. 82 De Los Tribunales Populares, enacted in 1997, which removed the court system from the oversight of the Ministry of justice, and made it an autonomous institution.[81] The Governing Counsel of the Supreme Court is now responsible for the administration, organization, and finances of the courts.[82]

These reforms came from within Cuba, and were the result of much discussion with judges, and other court officials. Cuban jurists see their role of working toward the “constant perfection” of the legal system as ongoing, in keeping with the notion of socialist legality. Cuban jurists often travel abroad to educate themselves on the organization of other countries’ judicial systems, and also host cultural legal exchanges in Cuba in order to foster dialogue with jurists from other types of political systems.[83] These measures indicate a strong passion for their work, and their legal institutions, which belies a strong belief in the role that law can and does play in Cuba and internationally.

Additionally, the codification of these laws and their availability to the public[84] makes the process of how the judiciary conducts itself as an organization more transparent and accountable. Reforms of this type serve to strengthen the rule of law as envisioned in the “thin” version.[85]

4.2 Training of Judges

Many saw the judges of the former regime as corrupt and biased in favor of the elite, and very few judges were given adequate training in the years following the revolution. As a result of the reforms detailed supra, the profession is continuing to advance, in terms of its independence and legitimacy.

4.2(a) Professional Judges

Professional judges in Cuba are elected by the corresponding assembly in which they sit. If a judge sits on the bench at the national level, he or she is elected by the National Assembly. If he or she sits at the Provincial level, it is the Provincial Assembly that elects him or her. As a result of reforms instituted in 1997, all professional judges serve unlimited terms, unless they voluntarily retire.[86] Under current law, the only way a judge may be removed is by legislative process. The circumstances for removal are codified in Ley No. 82, article 67. A judge’s mandate can only be revoked by violations of this article and it may only be done by the President of the Supreme Court or by the legislative authority that elected them.

This provision for non removeability except in certain limited circumstances helps to strengthen the independence of the judge. Judges know that they cannot be removed simply for failure to decide “the wrong way.” Allowing judges to sit for as long as they are able removes the judges from the whim of political pressure, and enhances the legitimacy of the judiciary as a whole.[87]

Judges must not only have the requisite legal training, but they must pass a competitive examination in order to apply to enter the judiciary. Anyone with the requisite training may apply.[88] They are screened by the Ministry of Justice in order to assure that they meet the necessary requirements as stated by law, (being a member of the communist party is not a requirement)[89] and then they may be presented as part of a slate of candidates to the respective legislatures for election.

4.2(b) Lay Judges

The reforms enacted in 1973 created the position of lay judges, who participate in trials at all levels of the judicial system as part of a panel of judges.[90] Just as professional judges serve the courts of the assembly that elects them, so do lay judges. The elected term for lay judges is five years, but during this period, lay judges maintain their regular employment and only participate in trials for about 30 days out of the year.[91]

The Ley De Los Tribunales Populares sets out the number of judges that serve on each panel. At the Municipal and Provincial levels, there are two lay judges and one professional judge.[92] Trials conducted by the Supreme Court have two professional judges and one lay judge.[93] Just as with professional judges, party membership is not a requirement.

Commentators note that lay participation in the judicial process “fosters democracy by checking executive despotism and ensuring independent decision making; it contributes to citizenship training; and it legitimates the decisions made”.[94] Commentators note “the lay judges have equal prerogatives and obligations, are not bashful and often vote in opposition to their professional colleagues, and provide particularly useful input at sentencing as representatives of the common citizen.”[95] In this way, the inclusion of lay judges can be seen as rule of law reforms within the “thin” notion of rule of law, by creating a judiciary that has one extra layer of independence from political pressure, an effort to avoid so called “telephone justice.”

4.3 Independent Judiciary and the Notion of Legislative Review:

Chapter XIII of the Cuban constitution sets out the role of the courts. Article 121 assures that the courts are “set up with functional independence from all other systems and they are only subordinated to the National Assembly of People's Power and the Council of State.” Article 122 provides that “The judges, in their function of administering justice, are independent and only owe obedience to the law.”[96] Ongoing reforms have strengthened this constitutional language.

As Professor Michael B. Wise points out in his article, “Cuba and Judicial Review,” the Articles of the constitution corresponding to the role of the judiciary in Cuba have been reworded since the constitution of 1976.[97] Prior to these amendments, Article 123 of the 1976 constitution contained highly politicized language including directing court activities to “maintain and strengthen socialist legality”, and to “make[e] timely comments in their decisions aimed at educating citizens in the conscious and voluntary fulfillment of their duty of loyalty to the Fatherland, the cause of socialism, and the norms of socialist living.”[98] The constitution no longer contains these provisions. Professor Wise hopes that the removal of such dogmatic language from the constitution indicates that perhaps the time is ripe for further judicial reform, including judicial review of legislation, which he sees as “one mechanism, in the process of democratization.”[99]

It is true that the concept of constitutional and legislative review is absent from the power of the courts.[100] Yet it is important to note that the notion of judicial review of legislation is not a uniformly accepted doctrine in all democratic societies, and its absence does not indicate that the judiciary is not independent in its functioning.[101] Scholars are not unanimous about necessity of judicial review in a government structure. Allan C. Hutchinson and Patrick Monahan write in their essay, “Democracy and the rule of Law:”

Judicial musing…is no substitute for civic deliberation. Rule by judiciary supposes that the only way to deter oppression is to impose external restraints on the political process. But because such restraints deny the moral competence of citizens, they undermine the very process of reflection . . . which might lead to a more mature collective morality. Elitist politics breed only a mob [.][102]

Reforms undertaken in the past 35 years have shown that the independence of the judiciary is taken seriously in Cuba; structural and educational reforms highlighted above serve to bolster this claim. Whether or not a certain system contains or does not contain structures intended for separation of powers does not bear on the question of the independence of the role of the judiciary in performing their tasks, and is not considered a necessary institution for rule of law to be present in a society.[103]

Part IV Conclusions

5.1 Cuba and Rule of law

Cuba has undertaken reforms that can be understood as rule of law reforms as embodied in the “thin” version of the rule of law. The result of these reforms is increased civil participation in governance, and a strengthened, more independent judiciary, all of which are essential to rule of law as a concept.[104]The interest taken by Cuban jurists in perfecting the judicial system in Cuba shows a strong commitment to a judiciary that is independent, and open to further reforms to enhance the functioning of the justice system in Cuba, and the existence of rule of law in Cuba.

There are still problems in Cuba, mainly the lack of transparency with regard to the functioning of the uppermost levels of the government, as pointed out supra, in Part III, and the restrictions on freedom of speech and freedom of the press alluded to in section 2.1.

Unquestionably, more reform is needed in the areas of transparency and accountability with regard to the functioning of the Council of Ministers. Additionally, (in keeping with the ideology of socialist revolution), as the goal of educating and uplifting the masses is met, restrictions on free speech and freedom of the press should be eased, since ostensibly the population is now capable of critical thinking, and can decide for itself what is and is not “in keeping with the objectives of socialist society.” [105]

5.2 International Monetary Support

As described infra at Part I, because of the close connection with capital market reforms and “thick” rule of law reforms that much international development aid is conditioned on, “thick” rule of law reform is unlikely to occur in Cuba. Therefore, it is not likely that present day Cuba will look to these types of institutions for monetary support. Additionally, if Cuba continues to adhere to the socialist goals that it has set out for itself as a society, it is unlikely that any trade with nations that do business in the United States is also out of the question for now.

Ideally, what Cuba should look for in a trading partner is one with the resources that would enable Cuba to hold its ground and continue pursuing its goal of socialism. If these partnerships are successful, Cuba will be able to sustain itself, even while the United States persists in its policy of isolating the island. The key for Cuba is to be able to find a solid plan for sustainable trade and economic development, while maintaining its ideological underpinnings.

Countries that are doing business with Cuba as this point seem to be those that are sympathetic to the goals of the socialist revolution. Venezuela, India, China and Spain all have international ties to Cuba.[106] Although none of these countries is seen as a beacon of democracy by western standards, these countries, especially China and Venezuela have the resources needed to assist Cuba, even in the face of United States pressures.

During the period following the collapse of the Soviet Union, the government made moves for economic reform while maintaining the idea of a strong central government. They are now using capitalist ideas for running state enterprises, but using these ideas to benefit the populace. For example, foreign investors may create joint ventures with State entities.[107] Additionally, many of the public Cuban enterprises are no longer subsidized, and are operated with the idea of making a profit. Profits are reinvested into the social welfare programs which represent 54% of the Cuban annual budget.[108] It is suggested that other Latin American countries might look toward Cuba’s unique economic strategies for reform and international investment as a model.[109]

5.3 The Future

Castro’s plan for the future seems to be one that utilizes the intellectual capital that they have built up since the revolution. The government has invested in the education and well being of its populace. With a society that has how many degreed people, it is hoped that their intellectual capital, focusing on technology and healthcare can be used as a trade export.[110]

If Cuba is able to secure international monetary support and make partnerships with countries that recognize their sovereignty, and do not try to force Cuba to adopt reforms that are not in keeping with its communist economic structure, the country may be able to continue to pursue its experiment of revolution. This will only continue as long as the populace believes in the revolution and sees its benefits, and perhaps this is more important than whether or not others ultimately accept Cuba as a nation that follows the rule of law, however described.

The people of Cuba and their neighbors have watched as the economic reforms instituted by the United States in many other Latin American countries have failed to create long lasting economic reform and are now looking to make alliances amongst themselves that will allow them to act independent of the United States, and shape the region themselves.[111]

Whether or not Cuba will have the opportunity to further demonstrate its commitment to socialist ideology rests on its ability to create international agreements. This will also depend on the willingness of the Cuban people to support their current form of government. What happens after Castro dies is indeed a guessing game, one that scholars are starting to see as out of date.[112] There is hope in some camps that once Castro dies, the nation will open its arms to neo-liberal reform, but others just wonder whether Castro’s brother Raul will have enough charisma to lead, or whether it will be Ricardo Alarcón[113] who will take up helm; seeing continuation of the current socialist government structure as a forgone conclusion.[114]

I do not believe that once Castro dies, the ideological underpinnings of Cuban society will drastically be altered, unless Cuba is unable to secure international monetary support on its own terms. Obviously, the two issues are intertwined. Belief in the promises of the revolution can be undermined if these promises are not met. The promises of the revolution cannot be met without the economic capital to do so.

In the end, Cuba is sui generis. An experiment that is ongoing. Cuba and its revolution has continued to survive against many odds, and has continued to adhere to its core principles. At the outset of the revolution, many saw Castro’s embrace of Marxists-Leninist ideologies as more a move of convenience rather than true philosophical inclination, yet now that the Soviet Union has Collapsed, how else to explain Cuba’s ongoing commitment to its communist ideologies?

[1] Judith N. Shklar, Political Theory and the Rule of Law, in The Rule of Law: Ideal or Ideology 1, 1 (Allan C. Hutchinson & Patrick Monahan eds., 1987).

[2] See generally, Richard H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional Discourse, 97 Colum. L. Rev. 1, 7 (1997). See also Fred Dallmayr, Hermeneutics and the Rule of Law, 11 Cardozo L. Rev. 1449, 1451 (1990) (noting "the unstable meaning of the phrase" given that "rule and law are themselves the targets of continuous interpretation and reinterpretation").

[3] See Eric W. Ortz, The Rule of Law in China, 34 Vand. J. Transnat’l L. 43, 75-76 (2001). (“The U.S. Agency for International Development, for example, which administers much of the government's budget for international aid, defines the promotion of the rule of law as "fostering the legitimacy, accountability, fairness, and effectiveness of laws and legal systems in recipient countries." The U.S. State Department has a rule of law program that aims similarly "to build political and judicial systems that promote democracy, protect human rights, and provide accountable government." The U.S. Institute of Peace sponsors a legal reform program that focuses on "normative or value-driven rule of law concerns," including "civil and human rights" and "democratic forms of governance." The World Bank and the International Monetary Fund promote the rule of law in order to establish "a free, unregulated economic marketplace."). (Internal citations omitted).

[4] John Adams, The Report of a Constitution, or Form of Government, for the Commonwealth of Massachusetts, as cited by Phillippe Nonet, The Rule of Law: Is That the Rule That Was?,125, 127 supra n. 1.

[5] Randall Peerenboom, “Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the United States” ch. 1; (Routledge Curzon, 2004).

[6] See John C. Reitz, Export of the Rule of Law, 13 Transnatl. L. & Contemp. Probs. 429, 435 (2003); see also Christine Sypnovich, The Concept of Socialist Law (Oxford U. Press, 1990).

[7] See Lon Fuller, The Morality of Law, 33-38 (Rev. ed., Yale U. Press 1977).

[8] Reitz, supra n. 6 at 443; see also Kim Thachuk & Maria Dakolias, Attacking Corruption In The Judiciary: A Critical Process In Judicial Reform, 18 Wis. Int'l L.J. 353, 360-361 (2000). “[. . . ] for example, the constitutions of Germany and Canada do not include a doctrine of separation of powers; rather, their judiciaries have functional independence.”

[9] Peerenboom, supra n. 2.

[10] Reitz, supra n. 6 at 432.

[11] Ibid.; See also Peerenboom, supra n. 2.

[12] Prasenjit Maiti; “Humpty Dumpty Had A Great Fall: Would Globalization Impact On States Dissolution?”, accessed at <http://globalization.icaap.org/content/v1.1/prasenjitmaiti.html>

[13] See for example, The World Bank’s Programmatic Financial Sector Adjustment Loan for Paraguay, accessed at <http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20435868~menuPK:34468~pagePK:34370~piPK:34424~theSitePK:4607,00.html> “The objective of this loan is to strengthen the financial condition of the private and public banking sector in Paraguay, in order to reduce its vulnerability to future shocks and negative impacts on economic growth, as well as increase the flow of credit for domestic investment.”

[14] See, e.g., World Bank Annual Report 2002, at 56 ("The percentage of investment projects with satisfactory outcomes rose from 69 percent in fiscal 1999 to 78 percent in fiscal 2001.") accessed at <http://www.worldbank.org/annualreport/2002/PrintVersion.htm>. But see, The Policy Roots of Economic Crisis and Poverty, A multi-Country Participatory Assessment of Structural Adjustment, Prepared by the Structural Adjustment Participatory Review International Network (SAPRIN), ch. 9, accessed at <http://www.saprin.org/SAPRI_Findings.pdf>

[15] See for example, SAP’s in India, accessed at <http://www.ieo.org/world-c10-p1.html>

[16] See, Maiti, supra n. 9.

[17] Cuban Const. art. 3, accessed at <http://www.asanac.gov.cu/espanol/const.ingles>

[18] Generally, see Lucien J. Dhooge, “Fiddling With Fidel: An Analysis Of The Cuban Liberty and Democratic Solidarity Act Of 1996;” 14 Ariz. J. Int’l & Comp. L 575 at 579-81 (1997).

[19] Reitz, supra n. 6 at 442.

[20] Ibid at 445-446.

[21] See, Debra Evenson, Law and Society in Contemporary Cuba, 10-11 (2d ed., Kluwer L. Internat’l 2003).

[22] Ibid at 16-17.

[23] See e.g., Mauricio Solaún, Is U.S. Foreign Policy Toward Cuba Justifiable?, accessed at <http://lanic.utexas.edu/la/cb/cuba/asce/cuba7/Solaun.pdf>

[24]Dhooge, supra n. 18, citing U.S. Department Of State Report, Cuba: State Department Notes 2 (Nov. 1, 1994).

[25] See, Report to the President: Commission for Assistance to a Free Cuba, Ch. 3 (“a liberation from Fidel Castro’s brutal communist dictatorship will inspire a new political order based on [. . . ], the rule of law, personal choice, and equal justice and opportunity for all.”) accessed at <http://www.globalsecurity.org/military/library/report/2004/32250pf.htm>

[26] See, e.g., Vladimir I. Lenin, The State and Revolution: The Marxist Theory of the State and the Tasks of the Proletariat in the Revolution ch. 1 (1917), available at <http://www.marxists.org/archive/lenin/works/1917/staterev/index.htm>

[27] See Sypnowich, supra n. 6, ch. 1.

[28] Ibid.

[29] Ibid. at 24.

[30] Ibid at 1.

[31] Ibid at 24.

[32] Evenson, supra n. 22, at10.

[33] See for example statement of Fidel Castro, January 19, 2003. "We are perfecting our revolutionary and socialist democracy," as accessed at <http://news.bbc.co.uk/2/hi/americas/2673213.stm>

[34] Evenson, supra n. 22, at 10.

[35] Ibid.

[36] Ibid.

[37] Cuban Const. art. 61, accessed at <http://www.asanac.gov.cu/espanol/const.ingles>

[38] Evenson supra n. 22, at 12.

[39] Speech given by the Fidel Castro Ruz, at the Law School of the University of Buenos Aires. Argentina, (May 26, 2003); accessed at <http://www.nowaroncuba.org/Commentary/Fidel_5-26-03.htm>

[40] See for example, Amnesty International, Amnesty International Report for Cuba, 2003, accessed at <http://web.amnesty.org/report2003/cub-summary-eng>

[41] See USAID Budget, Cuban Program Summary accessed at

<http://www.usaid.gov/policy/budget/cbj2005/lac/pdf/cuba_cbj_fy05.pdf> (“Proposed FY 2005 obligation $9,000,000”).

[42] Ricardo Alarcón de Quesada, President of the NAPP, Speech, (U. N. General Assembly, New York, Nov. 9, 1999) (English translation) accessed at <http://www.fgbrdkuba.de/pdf/d190999a.pdf>

[43] Ricardo Alarcón, No Problem, accessed at <http://www.ruleoflawandcuba.fsu.edu/regime-13.cfm> (April 30, 2003).

[44] See for example, Korematsu v. United States, 323 U.S. 214, 219-220 (1944). (“when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.” Referring to mass removal of Japanese-American citizens from their homes, during WWII).

[45] Cuban Const. art. 74, accessed at <http://www.asanac.gov.cu/espanol/const.ingles>

[46] Ibid., Art. 95.

[47] Ibid., Art. 74.

[48] Ibid., Art. 75(m).

[49] Ibid., Art. 93(b).

[50]Evenson, supra n. 22, at 30, fn. 56. (“Unfortunately there is virtually no information available regarding how the Council of State functions,[or] how often it meets. . .”)

[51] E.g., Cuban Const., art. 96. (“The Council of Ministers is composed of the head of state and government, as its president, the first vice president, the vice presidents, the ministers, the secretary and the other members that the law determines.”); see also, Cuban Const., art 74 (“[. . . ] the Council of State, which consists of one president, one first vice president, five vice presidents, one secretary and 23 other members.”)

[52] Cuban Const. art. 93.

[53] Michael B. Wise, Cuba and Judicial Review, 7Sw. J. L. & Trade Am. 247 at 258-59 (2000).

[54] Ibid. at 259.

[55] Cuban Const. art. 5

[56] Evenson, supra, n. 22, at 31.

[57] Ibid.

[58] See comments of NAPP President Ricardo Alarcón de Quesada as reported by División de la Agencia de Información Nacional (AIN); (April 18, 2005), accessed at< http://www.ain.cubaweb.cu/ingles2.htm>

[59] Ley Electoral Title V describes the process of nominating candidates for election. The process for nominating candidates is outlined in arts. 81, 82, 83 of the Ley Electoral. Accessed at <http://www.gacetaoficial.cu/le_t5_htm.htm>

[60] Evenson supra n. 22, at 31.

[61] Cuban Const., art. 88. (“The proposal of laws is the responsibility of: the National of People's Power; the Council of State; the Council of Ministers; the commissions of the National Assembly of People's Power; the Central Organization of Cuban Trade Unions and the national offices of the other social and mass organizations; the People's Supreme Court, in matters related to the administration of justice; the Office of the Attorney General of the Republic, in maters within its jurisdiction; the citizens.”).

[62] Evenson, supra n. 22, at 27-28.

[63] Philip Allott, The Emerging International Aristocracy, 35 N.Y.U. J. Int'l L. & Pol. 309 at 327 (2003).

[64] Ley No. 72, Gaceta Oficial Ext., No. 9, (November 2, 1992).

[65] Cuban Const., art. 70.

[66] Ibid at Art. 75(c), (d), (u).

[67] Reglamento de la Asamblea Nacional de Poder Popular, (December 27, 1996).

[68] Evenson supra n. 22, 29 -30.

[69] Ibid. at 30.

[70] Gail Reed, Summary of Resolutions Adopted at Party Congress, Cuba Update 12, at 16 (Mar./Apr. 1992).

[71]UNESCO Institute for Statistics. (This number represents the lowest number provided for literacy rates: it represents females over the age of 15. The literacy rate for 15-24 year old men and women is reported at 99.8%, as of 2002). Accessed at <http://www.uis.unesco.org/countryprofiles/html/EN/countryProfile_en.aspx?code=1920.htm>

[72] Evenson supra n.22, at 31.

[73] Ibid. at 32.

[74] See Edgardo Buscaglia, Obstacles to Judicial Reform in Latin America, in Justice Delayed: Judicial Reform in Latin America, ch.2 (Edmundo Jarquin & Fernando Carrillo eds., Inter-American Development Bank, 1998).

[75] Accessed at http://www.gacetaoficial.cu/leg_cub_htm.htm

[76] Accessed at http://world.altavista.com/

[77] Evenson supra n. 22, at 53.

[78] Ibid. at 54.

[79] Ibid.

[80] Ibid. at 55.

[81] Ley No. 82 De Los Tribunales Populares, Title II, Chapter 1, article 15-2, accessed at <http://www.gacetaoficial.cu/ltp_t2_htm.htm>

[82] Evenson supra n. 22, at 56

[83] For example, in 2002, the National Union of Cuban Jurists hosted the "International Conference of the Challenges of the XXI Century and the role of International Law" in Havana. The stated role of this conference was to “promote debates, exchange of experiences and the necessary reflections on International Contemporary Law, its principles, the concepts of humanitarian intervention, the limited sovereignty doctrine, Human Rights, International Humanitarian Law, the integration processes and the need to democratize the United Nations [. . .] accessed at <http://www.ain.cubaweb.cu/publicidad/juristas/retosing.htm>; see also, Gerald G. Clark, The Legal Profession in Cuba, 23 Suffolk Transnat'l L. Rev. 413, 419 (2000); Johannes Werner, A Rare Glimpse: Four of Cuba's Top Lawyers Provide a Miami Audience with a Snapshot of the Island Country's Legal System, Miami Daily Business Review (Dec. 28, 2001)accessed at

<http://www.lanuevacuba.com/archivo/notic-01-12-2900.htm>

[84] The laws of the Court system are available online at <http://www.gacetaoficial.cu/>,and are disseminated to the public in the paper version of the Gaceta Oficial,

[85] See Randall Peerenboom, China's Long March Toward Rule of Law 65 (2002). (“thin version of the rule-of-law, rests on procedural requirements like transparency, fairness, consistency, enforceability, and acceptability by the public.”).

[86] Ley No. 82 De Los Tribunales Populares, article 66-1(a) as accessed at <http://www.gacetaoficial.cu/ltp_t3_htm.htm>

[87] See Luke Bierman, Beyond Merit Selection, 29 Fordham Urb. L.J. 851, 864-866 (2002).

[88] Ley No. 82 Art. 42 (1997).

[89] See Evenson supra n. 22, at 59-60.

[90] Ley No. 1250 (1973).

[91] Ley No. 82 Arts. 52.2, 52.4.

[92] Ibid. arts. 35.1, 38.

[93] Ibid. art. 23.3.

[94] David S. Clark, The Selection and Accountability of Judges in West Germany: Implementation of a Rechtsstaat; 61 S. Cal. L. Rev. 1795 at 1830 (1988).

[95] Eric Luna, Cuban Criminal Justice and the Ideal of Good Governance, 14 Transnat'l L. & Contemp. Probs. 529, 551 (2004).

[96] Cuban Const. art. 122.

[97] Michael B. Wise, supra n. 54, at 262.

[98] Ibid.

[99] Ibid at 263,265.

[100] Cuban Const. art., 75(b), (c), (d), (Granting legislative review to the NAPP).

[101] Kim Thachuk and Maria Dakolias, Attacking Corruption in the Judiciary: A Critical Process in Judicial Reform, 18 Wis. Int’l L. J. 353, 361-362 (2000).

[102] Allan C. Hutchinson and Patrick Monahan, Democracy and the rule of Law in The Rule of Law: Ideal or Ideology 125,127 (Allan C. Hutchinson & Patrick Monahan eds., 1987).

[103] Thachuk & Dakolias supra n. 101, at 360-361.

[104] See United Nations Document, Combating Corruption for Development:

The Rule of Law, Transparency and Accountability, p. 11 accessed at <http://unpan1.un.org/intradoc/groups/public/documents/un/unpan005786.pdf>

[105] Cuban Const. art. 53.

[106] CIA World Fact Book, accessed at <http://www.cia.gov/cia/publications/factbook/geos/cu.html#Econ> See also, Cuba and Venezuela Sign Millionaire Bilateral Trade Agreement

(28 April 2005) accessed at <http://www.bilaterals.org/article.php3?id_article=1835>; India Cuba Trade information, accessed at <http://www.indembassyhavana.cu/commercial/Indo-Cuban_Trade_Statistics.htm>

[107] Law No. 77 on Foreign Investment (1995).

[108] Roland G. Simbulan, The Fundamentals in Health And Fundamentalism in Population Policy: Reaction to DOH Secretary Manuel Dayrit’s Assessment on Health and Population accessed at <http://www.yonip.com/main/articles/responce02.html >

[109] Christine Zack, Globalization's Unlikely Opportunist: Castro's Cuba Shapes the Paradigm for Economic and Political Stability in Latin America, 11 Tul. J. Int'l & Comp. L. 355, 381 (2003).

[110] Fidel Castro Ruz, Speech (Law School of the University of Buenos Aires, Argentina, May 26, 2003) accessed at < http://www.embacubalebanon.com/discurso26may2003e.html>

[111] See for example, Agreement between the president of the Bolivarian Republic of Venezuela and the President of the Council of State of the Republic of Cuba for the implementation of the Bolivarian Alternative for the Americas (December 14, 2004) accessed at <http://www.cuba.cu/gobierno/discursos/2004/ing/a141204i.html>

[112] Michael Wallace Gordon, Thinking about Cuba-Post Castro Cuba Began a Decade Ago, 15 Fla. J. Int’l L. 311, 314 (2003).

[113] Current President of the NAPP.

[114] See Peter Schwab, Legal Issues in International Politics Cuba: Confronting the U.S. Embargo, Ch. 7 (New York: St. Martin's Press, 1999).