It was with that in mind that we then considered the development of practices of endogenous democracy in Cuba since 1959--its origins, practices, successes and failures. More importantly we considered its self-conscious development. That is, we wondered whether the practices emerging, and especially most self consciously after 2008 and the start of the leadership of Raul Castro, were an expression of theoretical development, or whether theoretical development awaited the accumulation and development of practices that could be aggregated into theory.
The "laboratory" for this consideration was the process of development first of the revised expression of the political-economic model of Cuban Marxist-Leninism in the 7th Cuban Communist Party Congress through its expression in the constitution adopted in 2019 by plebiscite. We measured the sources and content of both formal engagement in the process (a relatively complex and imperfect endeavor) and then held that up to what was the most surprising element of engagement--the toleration (and perhaps co-opting) of a vigorous private engagement with constitutional reform both within Cuba and among Cubans living abroad.
Make no mistake, the article was not created as an apology to any political system. Indeed its core purpose was the inverse of apology--a mild and loving j'accuse directed to the comparative constitutional establishment to recognize their own prejudices when engaging with systems the core premises of which are incompatible with those that are personally appealing. This is a reminder that orthodoxy--no matter how appealing and necessary within a system (and some of us strongly believe that)--is an impediment to the rigorous study between normatively incompatible systems. In the end the last thing one ought to care about when one is studying systems is whether or not one "believes" in the system, one ought to be able to suspend disbelief in the impossibility of normative systems quite incompatible with their own values, and to consider whether or to what extent these also can serve to meet objectives, broadly understood, that are, at their bottom, meant to provide positive value for the collectives within which they operate. If the answer might be yes, then one can advance to the equally interesting question--just how great a gap exists between a system as conceived and the system as practiced, and how might leaders be held accountable for that gap. Beyond that, of course, one enters the realm (and quite an important one to be sure) of the great contests of values based systems to win the hearts and minds of political communities. But that, too, is likely a fnction of the ability of a system t show that it can narrow the gap between theory and practice that they can, within the logic of ther systems, advance accountability, and that, in the end, there is a value system against which such efforts can be measured.
The Introduction and Part A (the Cuban Context) of the article follows. We would welcome considered engagement by those interested in this conversation.
Popular Participation in the Constitution of the Illiberal State—An Empirical Study of Popular Engagement and Constitutional Reform in Cuba and the Contours of Cuban Socialist Democracy 2.0
Larry Catá Backer,
James Korman *
No necessity can be more urgent and imperious, than that of avoiding anarchy.... Traced to this source, the voice of a people—uttered under the necessity of avoiding the greatest of calamities, through the organs of a government so constructed as to suppress the expression of all partial and selfish interests, and to give a full and faithful utterance to the sense of the whole community, in reference to its common welfare—may, without impiety, be called the voice of God. 1
Is it possible to speak of democracy in illiberal states? 2 Is it possible to develop a space for popular participation in a Party-State political system? 3 Can such civic spaces exist beyond the direct control and management of the Party-State apparatus? Might civic spaces have some effect where a society is asked to reform its constitutional order?
If asked by Western intellectuals at all, these are the sort of questions that are presented rhetorically. They are uttered symbolically to suggest the difference between contemporary—and idealized—exemplars of liberal democratic orders and the less desirable or broken systems of illiberal “democratic” constitutional orders. 4 Yet these are questions that are worth taking seriously. The object of such inquiry ought not be the attempt at the construction of yet another variant of strategies for getting illiberal democratic or constitutional orders to be more like us. Rather the object ought to be to examine the possibility that, within their own premises, non-liberal democratic constitutional orders might create, tolerate, or embed a measure of direct popular participation in some form. 5 More interesting, is the relationship between the formal construction of popular participation of this sort and the robustness of its actualization. Thus, in the study of illiberal democratic constitutional orders, it is necessary to consider the extent of a formal space for participation, and its effectiveness as implemented.
The question is not merely academic or theoretical. Nor are the issues confined to the laboratory of historical failures. In 2018, the Marxist-Leninist political order of Cuba attempted to cap off a nearly decade long effort to revise its political and economic order by amending its 1976 Constitution. 6 That amendment process, though heavily curated by the Partido Comunista Cubano (PCC) was itself to be legitimated both by a heavily managed process of formal commentary on the constitutional draft and thereafter by a popular plebiscite seeking voter approval of the final version. 7 The results of the Cuban constitutional referendum, held Sunday, February 24, 2019, were not unexpected—a large majority of Cuban voters affirmed the changes to the Cuban constitution. 8 Yet almost three quarter of a million voters—9% of the more than 7,800,000 voters—voted no, while over 4% of the ballots were deemed irregular. 9 The positive vote was lower than the previous positive vote obtained for the last constitutional revision project in 1976. 10 The results produced the usual (over)reactions from supporters and critics of the current government and its political principles. 11 But more telling was the quite lively popular debate that occurred around the margins of the official performance of popular consultation. That official consultation was implemented through a set of stylized consultations, and the product of those consultations producing a final document were then submitted for and popular affirmation through plebiscite, that is, through the vote of the entre Cuban electorate to vote for or against the adoption of the revised constitution. 12 It is from a deeper study of those margins, not merely tolerated but in a sense supported by the state apparatus through its social media, that one might be able to theorize an emerging and quite distinct practice of popular participation within the structures of an illiberal constitutional state.
A. The Cuban Context
Narrations of Cuba’s trajectory of political development start by observing how from 1959 to 1976 Cuba was without a formal constitution. In 1959, Cuba adopted Ley Fundamental, but this document is generally seen as lacking the requisites of a constitution. 13 The fact that institutional development in Cuba did not take place in the immediate aftermath of the 1959 Revolution can be explained with the PCC’s views about democracy. 14 The revolutionary government saw the locus of democracy not in institutions of the Party or the State, but in the unmediated and direct relationship between the people and its revolutionary core. 15 Accordingly, “Ley Fundamental contained provisions about the executive, administrative, and judicial organs of the new state, but had not created a national parliament. The 1960s saw the making democratic choices through plebiscitarian meetings, where vote was expressed by acclamation.” 16
After 1976, the Cuban state was organized around a Constitution last amended in 2002 (effective 2003). 17 It was a constitution drafted in the fashion of the Soviet constitutions of the post-Stalin era. That Constitution reflected not merely the organization of a state along traditional European Marxist-Leninist lines; it also framed the fundamental constitutional principles of Leninism that set a vanguard or revolutionary party at the apex of the political system, relegating the administration of the state to a bureaucratic apparatus within which organs of popular engagement could operate under the leadership and guidance of the vanguard party. 18
But much has changed in the period since the 2002 constitutional amendment. Most well-known of these changes was the retirement and then death of Fidel Castro Ruz. 19 Raúl Castro replaced his brother Fidel Castro, and thereafter Miguel Díaz-Canel Bermúdez replaced Raúl Castro, who in 2018 assumed the duties of the presidency. 20 Less well known have been the great ideological changes that have been developing over the course of the last decade. These have been driven by the PCC and its efforts to reform the political and economic principles under which the state is organized and operated.
These changes were memorialized in three key documents, the products of the sixth and seventh PCC Congresses. The first document was the Lineamientos de la Política Económica y Social del Partido y la Revolución (“Lineamientos”). 21 The Lineamientos consist of 313 sections, as approved by the sixth PCC Congress. 22 Each provides suggestions for action that affects nearly every aspect of Cuban economic life, with consequential effects on social, cultural, educational and other sectors of activity that had been under the direction of the State. 23 The second and third documents were products of the seventh PCC Congress. 24 The second document was the Conceptualización del Modelo Económico y Social Cubano de Desarrollo Socialista (“Conceptualización”). 25 The Conceptualización serves to answer the question of what sort of theoretical model will guide the development of socialism in Cuba. 26 The third document was the
Plan nacional de desarrollo económico y social hasta 2030: Propuesta de vision de la nación, ejes y sectores estratégicos [PNDES] in which the PCC posited that development can be better managed by rejecting the central role of markets, and substituting state planning in its place, taking an all around view of economic planning as inextricably bound up in social, political and cultural progress of a nation. 27
The three documents framed substantial changes to the conceptualization and approaches to the operationalization of the Cuban political economy. The principal changes included a limited opening for the holding and sale of private property, the development of a limited private commercial sector (heavily managed by the state), and the possibility of aggregations of labor through cooperatives for approved economic activity. 28 These changes have been implemented through a series of laws, regulations, and decisions under the direction of the PCC. The changes were at the margins—they reaffirmed the central role of the vanguard party, central planning, and the state sector as the primary engine of economic activity at home and abroad, and the rejection of market mechanisms for economic planning. 29
Following these fundamental changes in the political line of the PCC, it became necessary to consider the extent to which the administrative constitution of the state also required amendment. Such amendment would strive to better align the organization of the state apparatus and its administration of the state, to the evolving political and economic line of the PCC, and to the statutes and regulations already adopted to implement them since 2011. In 2013, the Political Office of the PCC created a Commission for constitutional revision. 30 Chaired by the newly elected First Secretary Raúl Castro, the Commission approved the legislative basis of constitutional reform on June 29, 2014. 31 Four years later and after the Political Bureau’s approval, the PCC presented a guideline document for consideration by the National Assembly. 32 Based on those directives, on June 2, 2018 the National Assembly created another Commission that prepared the draft Constitution. 33 By the end of July, the Draft was distributed widely for popular consultation. 34 Consultation occurred from August 13 to November 15, 2018. 35 Meetings were organized all over Cuba at which small groups were assembled to give their opinion of the draft constitution. 36 These were then summarized and delivered to the National Assembly. 37 Additionally, there was intense debate in social media and among groups with strong interests in various provisions of the constitution, not least of which was debate about the constitutional protection of gay marriage. 38 The National Assembly met again to consider the popular consultation over a two day meeting held July 21–22, 2019. 39 The draft constitution was presented for approval by the National Assembly on December 22, 2018. 40 On February 24, 2019 a popular referendum was held on the Constitution, where citizens voted to ratify or reject the document. 41 Following a largely foreseeable vote in favor of the Constitution, the document was promulgated by the National Assembly on April 10, 2019 and went into effect on the 150th anniversary of the Camagüey Constitution. 42
Most Western coverage has treated these changes as important, expecting they would produce innovation in the political economy of Cuba. 43 However, in this case Constitutional changes merely memorialize the innovations that were first developed by the PCC and then implemented through quite complex sets of legislative initiatives. Even so, the reactions and expectation conveyed by Western coverage were predictable. Thus, for example, the Western press has emphasized the enshrinement of the recognition of free markets in the Constitution. It tended to read change from its own perspective, and to project its own desires and hopes into media coverage of the Cuban Constitution:
Cuba’s current Soviet-era constitution only recognizes state, cooperative, farmer, personal and joint venture property.... Ruling Communist Party newspaper Granma published a summary of the new constitution on Saturday, saying a draft it had seen included 224 articles, up from 137 previously. Details were not immediately available, and Reuters did not see the draft. But Granma said it enshrined recognition of both the free market and private property in Cuba’s new Magna Carta. 44To the extent it implies any embrace of Western-style free markets, such opinions may be misleading. 45 Indeed, Cuba has made it clear that it continues to reject notions of Western-style markets in favor of managed private sector activity that functions as a complement and gap filler for the state-run planned economy. 46
Footnotes*Larry Catá Backer is a member of the Coalition for Peace and Ethics Working Group on Cuba; W. Richard and Mary Eshelman Faculty Scholar Professor of Law and International Affairs, Pennsylvania State University, Contact: 239 Lewis Katz Building, University Park, PA or email@example.com. My thanks to my research assistants, Miaoqiang Dai (SIA 2019), Dr. Shan Gao (Penn State SJD 2018), and the members of the Coalition for Peace and Ethics, for their support and feedback. Portions of the theoretical foundation of this article were presented at the Annual Meeting of the Association for the Study of the Cuban Economy, July 2018.Flora Sapio is a member, Coalition for Peace and Ethics Working Group on Cuba, Università degli Studi di Napoli “Orientale” (Italy).James Korman is a member, Coalition for Peace and Ethics Working Group on Cuba, Pennsylvania State School of International Affairs (MIA 2019).1John C. Calhoun, Union and Liberty: The Political Philosophy of John C. Calhoun 34 (Ross M. Lence, ed., Liberty Fund 1992 (1856)).2 The concept of “liberal democracy” is easy enough to state and well supported by a vast academic literature, and yet “liberal democracy” as existing in the West has taken many different forms, leading some scholars to state that “the meaning of ‘liberal democracy’ and the liberal-democratic discourse has been an ever-developing and ever-changing one.” Sylvia Chan, Liberalism, Democracy and Development 14 (2002). See generally Eamonn Callan, Creating Citizens: Political Education and Liberal Democracy (1991) (discussing the theory of liberal democracy); Patrick Dunleavy, Theories of the State: The Politics of Liberal Democracy 4–6 (1987) (discussing the same); Stephen Holmes, Passions and Constraint: on the Theory of Liberal Democracy Ch. 1 (1995) (discussing the same). Deviations from prevailing definitions are usually classified as variations of illiberal states or systems, which are therefore not democratic. See, e.g., Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases 10 (2003); Aziz Huq & Tom Ginsburg, How to Lose a Constitutional Democracy, 65 UCLA L. Rev. 78, 122 (2018). It is worth noting, though, that this flowering of orthodoxy has been driven by many academics and policymakers deeply invested in the ideologies of “liberalism” as classically understood, and with that ideology a set of quite specific guiding premises about the precise practices of “democracy” has been formulated. See, e.g., Norman Dorsen, Michel Rosenfeld, András Sajó, Sussane Baer & Susanna Mancini, Comparative Constitutionalism: Cases and Materials (3rd ed., 2016).3 For the purposes of this article, a Party-State system refers to a political, economic and social system in which political leadership is vested in a vanguard, usually Communist, Party, which exercises authority over and guides the operation of the administrative organs of government. The People’s Republic of China represents an influential variation of the model. See Larry Catá Backer, Party, People, Government and State: On Constitutional Values and the Legitimacy of the Chinese State-party Rule of Law System, 30 BU Int'l L.J. 331, 332 (2012). Cuba represents another. See Larry Catá Backer, Cuba’s Caribbean Marxism: Essays on Ideology, Government, Society, and Economy in the Post Fidel Castro Era Ch. 2 (2018) [hereinafter Cuba’s Caribbean Marxism] (on file with author).4See Fareed Zakaria, The Rise of Illiberal Democracy, 76 Foreign Aff. 22, 22–24 (1997).5See generally Larry Catá Backer, From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems, 113 Pa. St. L. Rev. 671, 730–32 (2008) (discussing the authors’ view of constitutions and constitutional orders from a theoretical perspective).6 Mark Frank, Cuba’s Proposed New Constitution: What Will Change, Reuters (Aug. 13, 2018, 11:54 AM), https://www.reuters.com/article/us-cuba-constitution-explainer/cubas-proposed-new-constitution-what-will-change-idUSKBN1KY1UC.7 The popular plebiscite was held on February 24, 2019 and convened on December 22, 2018. See Convocan a Referendo Sobre Nueva Constitución Cubana, Bohemia (Dec. 22, 2018), http://bohemia.cu/nacionales/2018/12/convocan-a-referendo-sobre-nueva-constitucion-cubana/.8 Comisión Electoral Nacional, Informe de la Comisión Electoral Nacional Sobre los Resultados Finales de la Votación en Referendo Constitucional del 24 de Febrero del 2019, CubaDebate (Mar. 1, 2019), http://www.CubaDebate.cu/noticias/2019/03/01/comision-electoral-nacional-fija-cifras-definitivas-90-15-de-electores-votaron-en-referendo-constitucional/#.XM2mPqZ7kyk.9Id.10 Marc Frank & Nelson Acosta, Cubans Overwhelmingly Ratify New Socialist Constitution, Reuters (Feb. 25, 2019, 12:00 PM), https://www.reuters.com/article/us-cuba-constitution-referendum-idUSKCN1QE22Y.11See, e.g., id. (reporting on the ratification of the new constitution).12Id.; see n. 67, infra. For a discussion of the plebiscite in liberal democratic states, see, Henry W. Ehrmann, Direct Democracy in France, 57 Am. Pol. Sci. Rev. 883–901 (1963) (on the use of plebiscites in France at the end of the 4th and the beginning of the 5th Republic).13See Larry Catà Backer, Part 9: The Referendum in the Shadow of Cuban Socialist Democracy 1.0 (Caribbean Marxism's Socialist Democracy Series, Considering the Cuban Constitutional Project, From Communist Party to Popular Plebiscite) (Mar. 17, 2019, 10:28 PM), http://lcbackerblog.blogspot.com/2019/03/part-9-referendum-in-shadow-of-cuban.html. Ley Fundamental meaning “Basic Law.”14See id.15See id.16Id.17See Cuba Constitution of 1976 (Rev. 2002) Feb.15, 1976, pmbl, ch. XV art. 137.18Id.19Fidel Castro, Cuba's Leader of Revolution, Dies at 90 BBC News (26 Nov. 2016) https://www.bbc.com/news/world-latin-america-38114953 (“Although the announcement of Fidel Castro's death caught many Cubans unawares, it can't be said that they weren't partly expecting it. In a sense, they have been preparing for this moment, a post-Fidel Cuba, for several years now as he retired from public life and largely disappeared from view.”).20 Larry Catá Backer, Transitions to Entertain and Distract the West: A Harder Review at a New Era that Changes little as Raúl Castro Remains First Secretary of the Cuban Communist Party and Diaz Canel Assumes the Presidency Under the Leadership of the PCC, L. at End of Day (Apr. 19, 2018), http://lcbackerblog.blogspot.com/2018/04/transitions-to-entertain-and-distract.html [hereinafter Transitions to Entertain and Distract the West]. Though Raul Castro retained his position as first secretary of the Cuban Communist Party. Id.21See generally Partido Comunista de Cuba, Lineamientos de la Política Económica y Social del Partido y la Revolución para el Período 2016–2021 [Guidelines for the Political Economy and Social Policy of the Party and the Revolution for the Years 2016–2021] (July 2017), http://www.granma.cu/file/pdf/gaceta/Lineamientos%202016-2021%20Versi%C3%B3n%20Final.pdf.22 VI Congreso del Partido Comunista de Cuba, Lineamientos de la Política Económica y Social del Partido y la Revolución [Guidelines for the Political Economy and Social Policy of the Party and the Revolution] at 38 (Apr. 18, 2001).23See, e.g., Larry Catá Backer, Cuba's 6th Party Congress and the Lineamientos (Guidelines) For Structural Change in Cuba, L. at End of Day (May 17, 2011), http://lcbackerblog.blogspot.com/2011/05/cubas-6th-party-congress-and.html.24See Transitions to Entertain and Distract the West, supra note 20.25 Larry Catá Backer, Reconceiving the Government of Western Marxist Leninist States— “Comment to the 'Conceptualización del Modelo Economico y Social Cubano de Desarrollo Socialista,'” L. at End of Day (July 30, 2016), http://lcbackerblog.blogspot.com/2016/07/larry-cata-backer-comment-to.html; Flora Sapio, Comment to the Cuban “Conceptualización del Modelo Economico y Social Cubano de Desarrollo Socialista,” L. at End of Day (June 2, 2016), http://lcbackerblog.blogspot.com/2016/06/flora-spaio-comment-to.html.26See Larry Catá Backer, Central Planning Versus Market Marxism: Their Differences and Consequences for the International Ordering of State, Law, Politics and Economy, 32 Conn. J. Int'l L. 1, 9 (2017) (“The Conceptualización is of particular interest for its potential divergence from the construction of Chinese post-Soviet Socialist Market theory within the context of socialist modernization.”).27 Larry Catá Backer, The Algorithms of Ideology in Economic Planning (Penn State Law Paper No. 17-2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3005613 [hereinafter Algorithms of Ideology in Economic Planning]. The term “all around” is likely jarring to native English speakers. The preferred term would be “comprehensive.” But we use the term deliberately precisely because despite the difference in usage, Communist Party theorists and government institutions in China have developed a preference for the term “all around,” and it has become something of a term of art to refer to a set of specific Leninist principles embedded and developed over time in the Chinese Communist Party Basic Line. See Larry Catà Backer, Chinese Constitutionalism in the "New Era:" The Constitution in Emerging Idea and Practice, 33 Conn. J. Int'l L. 163 (2018).28 Algorithms of Ideology in Economic Planning, supra note 27.29Algorithms of Ideology in Economic Planning, supra note 27.30Anteproyecto de Constitución: Visión Hacia el Presente y el Futuro de la Patria, Granma (July 13, 2018), http://www.granma.cu/cuba/2018-07-13/vision-hacia-el-presente-y-el-futuro-de-la-patria-13-07-2018-20-07-04.31 The Commission included the President of the State Council Miguel Díaz-Canel Bermúdez and the Second Secretary of the PCC José Ramón Machado Ventura, among others. Id.32See Oscar Figueredo Reinaldo et. al., Minuto a Minuto: Proyecto de Constitución a Debate en la Asamblea Nacional, Segunda Jornada, Granma (July 22, 2018), http://www.cubadebate.cu/temas/politica-temas/2018/07/22/minuto-a-minuto-asamblea-nacional-continua-debate-sobre-proyecto-de-constitucion-de-la-republica-de-cuba/#.XNZZZ44zbIU.33 Anteproyecto de Constitución, supra note 30.34A la Venta Tabloide con el Proyecto de Constitución de la Repúblic de Cuba, Cuba Debate (July 30, 2018), http://www.cubadebate.cu/noticias/2018/07/30/a-la-venta-tabloide-con-el-proyecto-de-constitucion-de-la-republica-de-cuba/#.XXrhFShKg2w.35 Dianet Doimeadios Guerrero & Ismael Francisco, Proyecto de Constitución a la Consulta Popular en Cuba: “Hay que Prepararse,” Cuba Debate (Aug. 2, 2018), http://www.cubadebate.cu/noticias/2018/08/02/proyecto-de-constitucion-a-consulta-popular-hay-que-prepararse/#.XNQUwI4zbIU.36See Charlotte Mitchell, A New Dawn for Cuba? The Draft Constitution Explained, Aljazeera (Nov. 16, 2018), https://www.aljazeera.com/news/2018/11/dawn-cuba-draft-constitution-explained-181111192818890.html.37Id.38 Socialist Cuba Decides: Cubans Vote in Full Force to Approve the New Constitution, Council on Hemisphere Aff. (Apr. 11, 2019), http://www.coha.org/socialist-cuba-decides-cubans-vote-in-full-force-to-approve-the-new-constitution/.39See Transitions to Entertain and Distract the West, supra note 20.40 Yeny García, La Nueva Constitución Cubana Mantiene el Partido Comunista como “Fuerza Única y Superior,” El Periodico (Dec. 23, 2018), https://www.elperiodico.com/es/internacional/20181223/cuba-aprueba-el-texto-final-de-su-nueva-constitucion-7217832.41 The question printed on the ballot was “Do you ratify the new Constitution of the Republic?” (¿Ratifica usted la nueva Constitución de la República?) Voters then had a choice to write “Yes” or “No” in relevant spaces on the ballot. Vivian Bustamante Molina, El Referendo Acentúa la Participación Ciudadana en la Nueva Constitución, Granma (Jan. 8, 2019), http://www.granma.cu/cuba/2019-01-08/el-referendo-acentua-la-participacion-ciudadana-en-la-nueva-constitucion-08-01-2019-22-01-03.42 Camagüey is one of the earliest Spanish settlements in Cuba, so named after a local Taino chief, and the city where Ignacio Agramonte drafted the 1869 Constitution of Cuba, after the Ten Years’ War against Spain. Parlamento Cubano Proclamará Nueva Constitución, Agencia Prensa Latina (Apr. 9, 2019), http://www.escambray.cu/2019/parlamento-cubano-proclamara-nueva-constitucion/.43See, e.g., Geoff Thale & Teresa Garcia Castro, Cuba's New Constitution Explained, Wola (Feb 29, 2019), https://www.wola.org/analysis/cubas-new-constitution-explained/.44 Nelson Acosta & Sarah Marsh, Communist-run Cuba to Recognize Private Property in New Constitution, Reuters (June 15, 2018), https://www.reuters.com/article/us-cuba-politics/communist-run-cuba-to-recognize-private-property-in-new-constitution-idUSKBN1K4108.45Cuba’s Caribbean Marxism, supra note 3, at Chs. 5, 6.46Conceptualización del Modelo Económico y Social Cubano de Desarrollo Socialista (2017), http://www.granma.cu/file/pdf/gaceta/Conceptualizaci%C3%B3n%20del%20modelo%20economico%20social%20Version%20Final.pdf.