PROJECT FOR THE CONCEPTION OF STATE AND RIGHTS POSCASTRO

by: Faisel Iglesias
Delegate for the Caribbean
Liberal Unity Party of the Republic of Cuba

Humanity has two clasical conceptions of society, state and rights: the oriental conception, which has persued a colective development, in an agresive colective form, of men instead of benefactors who's main goal are to be served by the people. Example of this has been tyrannical empires such as egypt, Mesopotamia, and China, in antiquity, in modern times totalitarian governments of Eastern Europe and the occidental conception, which was not only a military and political force, but a civilized movement, creator of humanity, social conduct, comun life, which in antiquity enjoyed a structural unity; inherited by the roman empire, with roman rights, which became de dominant force under one culture in one comun language for 1,000 years; in latin, and in spirutual christianity, because we are made in the image and likeness of God the people are the rulers and not the state.
Cuba is the byproduct of what has been labeled the western civilization. But the Moorish invasion of Spain and the process of reconquering has provoked a branching out in the western world. In other words what we know as common law, with its tradition of respect of individual rights, putting a stop to ithe ncreasing power of state rule and the independence of the judiciary system, since the letters of introduction in the case of Johns nule intitlement to realestate in England, which was extended to the thirteen colonies of North America, and the Latin tradition.
In 1188 letters of the court of Leon in Spain, which represents for most scholars the first predecessor of what we know today as the constitution, which also consecrated individual rights and limited the power of the monarchy, resulting in powerless law editing, due to the necesary concentrated inherited powers in the process of reconquering and the same conception of autocratic rule which was impregnated into the spanish socienty by the invading moors.
THE CONQUEST AND IMPLEMENTATION OF STATE AND RIGHTS IN CUBA
The scientific development during the 15th century, permited the old continent, " to seek new routes for comerce" which in 1492, the most iluminating admiral who saw the best fermentable land which eyes had ever seen. Columbus, precursor of christianizing in the Americas, at the cost sacrificing the natives and their values, had express his desire in being crowned viceroy of the new lands. In his dairy he wrote the words gold 139 times and the word God or the frase "our lord" only 52 times, and in 1492 stated in writting: " will christianity have any comercial standings in these lands".
Opened the path which Columbus had established, in 1512 captain Diego Veláquez, through the orient of Green Lizard strecht, with 300 men, coming from different hostil backgrounds, with saints and sign marks more or less reflected characters deep from in the bowels of dantes infernal prison pits of the era (without undervaluating those of our centuries) instead of coming from the ports of hispaniola, the name with which conquistadors christened the original Quiqueya, which is today the Dominican Republic.
With the forc of fire, Blade, epidemics and eventual death they implanted - rumored, according to the Lord - a society, state and odd rights, culminating in a special kind of alien reality, which the - always! - the island of Cuba did not experienced. It was a society witn very little elements, with a state and a precarious system of rights, where confusing interwinding political powers, military and in some cases the judicial system , in the same funccionaries which 300 years later, in the pinacle of the 19th century, would maintain itself in a state of insignificant variable status. It was not until 1812 when the courts of Cadiz could not count with a Magna Carta, in the sence of the modern word, creator of supreme institutions.
GUAIMARO: TWO CONCEPTIONS OF STATE AND RIGHTS
Carlos Manuel de Céspedes, when reality was insupportable and nacional and human dignity where stepped upon by archaic, exploiting cruel colonial system, while many hesitated, as if with great force, coming from within the imperfect deep bowels of the earth, he launched forward at full speed to conquer independence at the edge of a machete, convinced that with only twelve men it would be sufficient to gain the liberty of Cuba. Proclaimming himself Captain General of the Liberating Army of Cuba, with centralized command, to assure the triunfal revolutionary independence, previous to the path for a democratic republic.
Month later at a horse ranch in Guaímaro of Ignacio Agramonte, at a constituent convention of the first Republic at arms - the institutional Bethlehem of the Cuban Nation -, leading a group of liberal intelectuals, he resolutely opposes Céspedes, Pretending to create an institutional organization that would guarantee not only de independence of Cuba, put the freedom of all cubans, submitting the military command into the hands of the people - even during the middle of war! - and the proclaimed the empire of law, and that the power of rule would be in the hands of the people.
Agramonte was victorious, but the war was lost. Ever since the cuban nation has been asking: Céspedes or Agramonte? One tactic or the other can be effective; it all depends on the circumstances: Céspedes to create war or Agramonte to impose peace. But in the other hand the cuban people have always suffered due to the lack of tact and wisdom. In the great war for Cubas Independence wi have always submitted the commands of battles to the lengthy resolutions of the power of the jungle and in times or peace we have turned our will over to the governing power of the military.
THE CUBAN CONSTITUTION OF 1902

After 30 years of struggle for the independence of Cuba with machete in the hand and the treaty of Paris in 1898, in 1902 Cuba formed its first constitution in the Republic. Considered one of the most advanced in its era, even though it was restricted by the Platt ammendments, it permitted the population increase from one million six hundred in the 19th century, to five million inhabitants in 1925. From a sugar industry of destroyed and torched incendiaries at Gómez and Maceo to producing five million.

POLITICAL, SOCIAL AND ECONOMIC GROWTH

At the end the half part of the 20th century, thanks to certain political balances taking place in the revolution of 1933, with the constitutional strength, and unbelievable, a Second World War which destroyed Europe, but this permited Cuba to take over the sugar industry, due to the destruction of the sugar beet industry in Europe, this desaster helped accelerate the economic, political and social status of Cuba to new hights.
The judicial expression to this process was the unrealized contitution of 1940. Was the pioneer in adknowledging individual rights, to establish the social function of private property. But these beneficial laws did not stop the proyect from becoming a political ideology -developing their own rule; each administration had the ability to adapt according to the circumstances, which made the constitution lacking any meaning at all.
Besides the battle launched against the Batista regime the cubans had a car for each 40 inhabitants, public transportation woul circle the mayor concentrated routes every 3 to 5 minutes, there was a phone for every 38 persons, 270 radio stations, 23 television channels (one of them in color), 27,000 private industries (80% in cuban control), 2,340 mayor industries producing more then a thousand million dollars in profit and the annual income was the 5th larggest in latinamerica and the 31st in the world according to historian writer Levi Marrero.
Not mattering the institutional virtues, the talents and the cuban creativity, lacking the most ilustrous figures due to the war of independence, approved the implementation of Agramontes ideal conception in times of war, in an er lacking comunication, the mayority of the mn where incapable of achieving the apostals spiritual greatness, proving the ineptitud of the tripatison conception to avoid administrative corruption, the suviving commanders started to direct the country and summit it to their own machiavelic personnal interest.

THE WARNING FROM A POET AND THE CATHOLIC CHURCH

Only the catholic church, the oldest institution, with their millenary wisdom and a man with the intuitive sensibility of André Breton, poet of the realistic movement, "capable of feeling, discovering, and hearing, traveling in a bus of Habana, walking through the streets and city districts, feeling the hardship of the people", they could forsee, coincidently the same year of 1947, when the world was blind, or did not wanted to see or was not to their convinience to see, the dramatic conditions that where developing in the key fo the Americas, where warning of a tremendous comfrontation. " In this country we can feel the resurgence of a revolution", said a poet and Pope Pio the XII, en a radio program to the people of Cuba warned: " You feel great pride, with just reason, to have been born in what somebody called the most beautiful land that human eyes ever saw, in the perl of the western world. But in that same pitiful climate, the exuberance and pleasure danger is approaching. I percieve that the arrogant trunk of the regal palm tree, which is swinging freely, the tempting serpent is approaching... it there is not a supernatural force in each one of you, defeat will be inevitable.
Cardenal Jaime Ortega, Archbishop of Habana, would remind us in a visit he made to Venezuela, at the start of 1995, that the Pope would understand that the foundation of the country had not finish in developing, that we did not percieve the great challenges of history, our nacional and hemispheric responsabilities.

THE CUBAN REVOLUTION CONFRONTS A BIPOLAR WORLD

The state of things where becoming insupportable. Change needed to become an historic necesity. The cubans instead of believing more in revolution instead of evolution, charge with intolerance, without measuring adecuately the transcendental consecuences of the act, we went looking for a war manipulated by personal and ideological interest, with their death sequels, destruction, hate, son of an expeled patriarch, who studied the writtings of Mussolini, a student with a conservative vocation of not forgiving his enemies, in five minutes he capitalize on his actions with the attack on the Moncada Barracks, the rebelious spirit of a cheated nation of an intelectual setback, of a small but cheated middle class, a countryman without land, of a humiliated nacional dignity.
Already commanding in the Sierra Maestra a group of no more then 300 men, Fidel Castro Managed to destroy the Nacional Colective Direction of the 26 of july movement called Frank País, that directed the most abnegated fighters of the flatlands and the city clandestine movements, to submit all civilians to the general command - with one commandant, becoming commandant in chief ! - manipulating the nacional and international opinion, and in one moment due to the laws clandestiness, only the men of the rebellion could be recognized, converting them into undisputable national heroes from one day to the next, obscuring the brilliant sacrificess of those in Habana and Santiago of Cuba, who in each city of the country where creating the real path to glory.
It was a brilliant move which permited him to name leaders of those who had no preparation, cultural, or historical combat experience, depending in many cases the more or less whim of the commandant and according to the doctrines of the marxist leninist theories and practices. That internal struggle, all said by the exmember of the Nacional Directional Movement of the 26 of july, Dr. Licas Moran, he expressed to Frank País, when his death was imminent, and was adviced to hide in the mountains: " I do not seek the Sierra because Fidel Castro wants to kill me or because i want to kill Fidel, which is the most probable." A short time later Frank País was killed in questionable circumstances, where the name of Vilma Spin, appear as an acomplice in the conspiracy together with the brothers Castro.
In a few month Raúl Castro, a communist, became chief of the second front; the commander Félix de la Torre, and old friend who had never been in the Sierra Maestra, was assingned chief of Camagüey; Che Guevara, international communist, chief of Las Villas. En Matanzas, in contempt of many commanders, Captain Willian Gálvez, a communist; In Habana Camilo Cienfuegos, communist; and in Pinar del Rio commandant Escalona, also a communist,
these where the echoes of the "singing" in the morning of the Santa Ana. Then came the first of January, when the world was drenched in another type of war, another hemispheric war. The triunfal revolution of 1959, in the middle of World War Three, better known as the cold war - era in which humanity sank into an asphyxiating terror of nuclear war - , the antiimperialistic sentiment of an important sector of society, which ignored and blocked the standing of the constitution of the 40s, the real product of the wil of the people, the aspiration of the communist party to take power and implement " the dictatorship of the proletariat", - Without the proletarial ! - the clever manipulation of the" internacional Stanlinism", together with the vocational dictatorship and self imposed rule of the Fidel Castro, and the intolerance of the american government, compromised at the time with the most corrupt and retrograded rulers of the world, besides other things, conditioned a reinforced alignment of Cuba with the communist powers, which had a monist conception of the state and considered all rights and instrumnt of political power. Cuba in this way came out of its natural habitat, its historical cultural space, the western hemisphere, and asimilated into an oriental conception, inquisitor, semifeudal, autocratic, zarist, with very little social utopicl structure style, commiting the historical error, that José Martí advice us against more than one hundred years ago, we should avoid from copying doctrines and foreign forms of government.

THE SOCIALIST ARCHAIC CONCEPTION OF STATE AND RIGHTS
The foundation of the Socialist field, directed by the then Soviet Union, had its starting point based on the russian october revolution of 1917. The pinnacle of the russian feudal system of the 20th century, which started to embrace the modern age, which the western world had already done a long time ago. Rusia which had not recieved yet, in a prompt form, the influence of roman rights, of the renaisssance, the enlightenment, encyclopedic movement, the british industrial revolution, and not but least the french revolution, and the tripartisan conception of the powers of state, which was inherited to the world by the brilliance of Monstesquiu, if not by the creation of the Duma, a type of submited parliament, legalized unanimously by a pervert in many cases of a ilegitimate will of the zar, historic predecessor ot the infamous so called popular assembly of the totalitarian socialist countries.
Rusia had not known a constitution. "Only once in november of 1917, a parliament was voted in freely, but without the benefit of being able to assemble", Michael Morozow reminds us in his book, "The case of Solzhenistsyn" The russian people lacked a traditional public opinion. The thinkers where in the literature, and their lives where tragic ones.
Soviet communism, was a society directed by the state, which tried to unite all areas in one monolithic block and impose a comun direction, from the economic all the way to the political and cultural, by means of one institution, the political party. The art, the cullture, real expressions of the values of a society, where ended by a state which would not permit the creating, but only on there terms of political convenient interest.
That self will, that fixation in constructing by force a heaven on earth, with God or saints, forget about angels, and including, against them, the communist ideology, its arts, it converted in short time in a simple list of words, that nobody believed in, in a boring rhetoric litany that had only one valid code, to teach one language, which made it lack any kind of real significance.
The modern times which started its beginning with the renaissance, beginning with the invention of the printing machine all the way to the digital language, from the century of the light all the way up to socialism, from positive thinking to the scientific view, the industrial revolution to the informatic revolution, under the sign of man who, until the summit of all existing things, was capable of discovering, define, explain and dominate all and convert himself into the only owner concerning the trueth in this world, The socialist block, the last expression of modernism in this age, where it was believed that the universe and man represented a system capable of being explored all together, was also directed by a sum of rules, directives or systems that, it was thougt, man would go on dominating and orientating tu his advantage. It was the era of the purpose of an ideal society: communism, in virtue of a doctrine (marxist-leninist) which was considered the scientific trueth, according to the order in which life should be organized.
"Socialism has two dangers, like all others - José Martí had warned since the last century, the danger of foreign lectures, confusing and incomplete, and of the arrogance and simulated madness of the ambicious, to succeed in life by pretending to believe, to have shoulders to rest on, they are frenetic defenders of the forsaken."
In 1887, John Rae, in his comtemporary book on socialism (by consulting the book of José Martí) expressed "Communism ends up in all the contrary which it pretends to reach; it seeks iquality and ends up in class differences, seeks the supression of the monopoly system and ends up creatinf a new one, it seeks to obtain the happiness fo its people and ends up decreasing it. Its an Utopia, and? Why is it an Utopia?... because the mayor iquality and the mayor liberty can only be gained by working together."
The fall of the Berlin wall meant, not only the end of the soviet block (marxist-leninist) in the cold war, the victory of the western values in this planet, but the weakness of the modern age, the era of myth, of ideology, the doctrinated political parties, candidates "for the taking of power", and the start of and age of circulation.

CUBA: A COUNTRY WITHOUT A CONSTITUTION

A constitution is the basic foundation of the laws of its country, according to it, modern society defines the orientation of the politics of the state, it establishes the supreme competitions and the fundamental rights of the individual, which has its roots in the rights of nature. Its the creator and the holder of a social political unity.
They are the superior judicial instruments to control the historic abuses of power. A mechanism of control of the excess. Its born to organize a state. Limists the excess of the different powers, dividing it, by the means of a mechanism of brakes and counter weights.
And the unfortunate cuban Socialist Constitution of 1976, Its commissioned itself to deny its own value of the supreme law when in its 5th article its monolithic conception, the subordination of al the powers of state, the society and the particular individual abided by the decisions of the communist party.
In other words the fundamental law of Cuba is not the constitution, but the rule of the party, the agreement of the congress of the party, its central committee and of all, the orders of its first secretary, the commander in chief.
Continiously for Cuba, like in all latinamerica the western concept of the tripartisan power have resulted in just a mere dream. The corruption of the functionaries and the nepotism has been the historic trueth. The country needs a system of weights and institutional counterweights, which each body is voted by the sovereign power of citizens, in order to guarantee the purity in the public system and guarantee the rights of the citizens and that the chief of state does not govern in order to stop the concentration of power.

1) JUDICIAL POWER

The Judicial Power. Its function is to impart justice, interpret the laws and watch over the constitutionality of the same, also in the other acts of any of the powers of . Should have a profesional career and others elected by the people, in order to have an existing balance between functionaries who should respond directly to the people and all those who should exercise their profession without having to be tied up by the economic restraint, political and social.

2) THE LEGISLATIVE POWER

The legislative power should be voted democrately by the will of the people and their functions should be to legislate and investigate the legislative branch in order to gain the ends of its purpose of existance.

3) EXECUTIVE POWER

The executive power, will be incharge of developing the work of the government, inside the frame of the institutions and actual legalities.

4) FISCAL POWER

The fiscal power should be the guarantee of the correct practic of the law. Watch for the pure practice of the public administration and the rights of its citizens. It should audit, control, investigate and charge, accordingly, the persons naturely and judicialy.

5) ELECTURAL POWER

The electural power will be incharge of certifying every functionary who has gain the position he has been voted into, in virtue of better rights, or for which he was elected in virtue of the will of the citizens. It should be a guarantee against nepotism, influencess and incompetence.

A PRESIDENT THAT DOES NOT GOVERN

To avoid the concentration of power in one person, which they can convert in determined historic circumstances in another of our dictators, the president of the republic, should represent the country as chief of state, but should not govern, function which, as we had explain before, will fall in the power of the executive chief.