Compared with what?

How to Read the Cuban Constitutional Reforms

On February 24, Cuban citizens will go to the polls to approve a major revision to their Constitution. This sort of constitutional referendum is now common practice in modern democracies, but it is an odd practice. It is not easy for citizens to arrive at an up or down decision on a constitution. One thing that helps is to read the draft constitution in comparison with both the current law and other constitutions in the world. That’s what a group of scholars has done this week by publishing (in both English and Spanish) the Cuban draft constitution on Constitute — a site dedicated to reading and analyzing Constitutions comparatively. By the way, the debut of the Cuban draft coincides with the launch of the Spanish version of the site (a significant translation effort!).

Two choices on February 24: “si” or “no”

Background to the February 24 Referendum

A first draft of the constitutional reform was released by the National Assembly in July of 2018. Thereafter followed a three-month period of consultation in which the citizens were invited to weigh in on all manner of things. Representatives gathered for a conference, and municipal groups held over 130,000 meetings with citizens. Cubans said their piece, it seems — on everything from marriage equality to private property to artistic expression. The process produced substantial changes to the draft. The Cuban government’s traditional news outlet — the Granma — dutifully carried a point by point discussion of the changes that were incorporated post-consultation.

A consultation meeting under way at the Nguyen Van Troi Polyclinic in Havana

The Citizens’ Perspective

The Cuban postal service has published some three-million print copies of the draft constitution, which are on sale at news-stands and post offices for one Cuban peso (roughly $.05).

So what, exactly, is going through the minds of Cuban readers of the text, or for that matter, any voter in such plebiscites? It’s hard to imagine a general attitude towards the text, at least one unmotivated by politics, in part because the change is so comprehensive. One of the perplexing aspects of the typical constitutional referendum — whatever its utility for transparency and participation — is that citizens are asked to come to a binary view of a complicated, multidimensional document.

So let’s imagine a Cuban citizen who wants to dig into the text and come to some sort of appraisal of it. A fresh, unguided reading of the text might very well trigger some reaction from readers. But, of course, we know that it is hard to come to an opinion of anything, much less a legal text, without a reference point. The natural (maybe best) response to a request for an evaluation of a constitutional text is “compared to what?”

The Cuban Draft, hot off the press, and for sale at the Post Office

The Cuban Draft…compared!

“Compared to what” captures the premise for Constitute, a repository of the world’s Constitutions, which emerged from an academic project on world constitutions (the Comparative Constitutions Project). The intent of Constitute is to surface the world’s constitutions in an indexed, comparative, and beautiful way. So, if you’ve been following the protracted negotiations in Washington these days, you might be curious about worldwide provisions on emergency provisions or even budget bills.

The typical use of Constitute is to read constitutions that are currently in-force. However, recently, the Constitute team introduced a feature that allows readers to view the draft constitutions on which they will vote. It’s a feature created expressly for situations such as Cuba’s. Constitute now includes the two drafts of the Cuban Constitution — that is, the pre-consultation draft as well as the post-consultation draft that is now before the voters. Cubans can now see what their current and successive draft Constitutions say about property rights, marriage rights, or references to the rights of artists. For example, with respect to marriage, the Cuban drafts of 2018 and 2019 articulate slightly different visions of the institution, but both clearly depart from the current constitution’s definition of a “union between a man and a woman.”

Provisions on Marriage in Three Constitutions (screenshot from Constitute)

The typical “view” in Constitute is to read excerpts in a cascading list, by country (such as the above). However, one can also select two constitutions to read side-by-side, still indexed by topic. For example, one notices that the right of assembly has a simpler, more general, expression in the new document than it does in the prevailing constitution, which identifies the right as one pertaining to workers.

The old and the new — side by side

And Now?

This more comparative reading of the draft is a decidedly different way to read legal text, especially in Cuba. Admittedly, the referendum will not ask Cubans to choose between constitutions — not between old and new and not between Cuba and, say, Colombia. However, having a reference point can provide readers with a useful framework for drawing conclusions about the existing text and imaging other constitutional possibilities.

Professor of Government at the University of Texas.