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February 2003 • Vol 3, No. 2 •

A Closer Look at Cuban Law

By R. Stephen Roberts

I recently traveled to Cuba with a group of American lawyers and professors to meet with our counterparts in Havana.

Our discussions centered on the differences and similarities of the U.S. and Cuban constitutions, legal systems and underlying philosophies. It is the underlying philosophy that is essential to understanding the differences.

While the U.S. Constitution is based on a system of checks and balances and a series of limitations on government, Cuban law and philosophy is that the government is not to be feared or limited, but rather, government is the people and therefore will do the right thing.

The current Cuban constitution, written in 1976, has many of the same provisions as the U.S. Constitution, though couched in terms of a socialistic system.

It guarantees all Cubans the right to free education, from grade school through professional school, the right to own a limited amount of property, and the right to free medical and dental care.

As a result, Cuba’s education and health care are among the best in the Western Hemisphere, according to the World Health Organization. For instance, Cuba has a 96 percent literacy rate and a significantly lower infant mortality rate than the United States.

Another very interesting and significant element of Cuba’s constitution is that it specifically prohibits discrimination based on gender. (Cuban women make up 65 percent of the legal and other professions in Cuba.)

In contrast, the U.S. Constitution still lacks this provision as the Equal Rights Amendment failed ratification in the late 1970s, falling three states short.

The Cuban constitution also has a provision for freedom of speech. It is, again, couched in the language of their unique view of the Cuban socialist state: “Citizens have freedom of speech and of the press in keeping with the objectives of socialist society ….”

Limits of free speech unclear

It was impossible to get any clear explanation from our Cuban counterparts of exactly what this means for the average Cuban citizen. They simply refuse to believe that they have any less freedom of speech than we in the United States have. We strongly disagreed with them on this point.

In one exchange we stated, “We can go out in the streets and yell, ‘Down with the government, down with President Bush.’” Their response: “We, too, can go in the streets and yell, ‘Down with Bush.’” At least they have a sense of humor about it.

When pressed, the best we could get from the professionals in Cuba was that “there is really no need to criticize the government, since we, the people in a socialist state, are the government.”

The Cuban defense lawyers explained that all Cuban citizens accused of crimes (though there is very little street crime in Cuba) are entitled to representation by an attorney. If they cannot afford an attorney, one will be appointed to represent them, much like our public defender system.

The Cuban constitution contains the equivalent of our Fourth Amendment (prohibiting unreasonable searches). However, it is the prosecutor who issues search warrants, as opposed to a neutral and detached magistrate as in the United States.

Trust in government

The Cubans’ positive outlook toward government is a genuine attitude of trust and respect, although we were not necessarily clear why they trust government so much. We found ourselves re-examining our belief that one kind of government works best for every country.

Cubans consider their professions, lawyers, doctors, dentists or law professors, to be a form of national public service and do not seek out their professions as a way to greater earning capacity. As they explained, they are a country of “community,” whereas they view America as a country of “consumerism.” Perhaps this best explains the emphasis in their constitution on the collective well being rather than individual liberties.

We found the Cuban people warm, friendly, fun-loving and, in spite of our tortured and shared history, very much in favor of better relations with the United States. Despite our different philosophies of government and law, our delegation concluded that we have more in common with the Cuban people than we have differences. President Kennedy once said, “The power of people acting as individuals to respond imaginatively to the world’s need for peace is the true path to human understanding and world peace.” At this time in our history, this is a compelling notion indeed.

Atlanta Journal-Constitution, January 16, 2003

R. Stephen Roberts practices law in Decatur.





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