10 ways reforms to Cuba’s Constitution would impact human rights

After months of public consultation, the Cuban government says it will hold a referendum on changes to its Constitution next year. But will these reforms pave the way for greater protection for the rights of Cuban people or further clampdown on their freedom of expression?

Here are 10 things you should know about the proposed changes:

1. At a first glance, it appears to strengthen a host of human rights protections. But at a closer look, it quickly limits them to what is already found in national laws.

For example, under the proposed reforms, Article 17 states that international treaties ratified by Cuba will be integrated into national laws. While Cuba has still not ratified key international human rights treaties like the International Convention on Civil and Political Rights and the International Convenant on Economic, Social and Cultural Rights, it has ratified others such as the Convention on the Elimination of all Forms of Discrimination Against Women and the Convention against Torture. Integrating international treaties into domestic laws would be a way to further enhance human rights protections. However, again and again, throughout the text, human rights guarantees are restricted to what is already established under Cuban laws, many of which are contrary to international law and standards.  This could potentially open the door for international human rights law and standards to be subordinated to national laws and impose undue restrictions on human rights.  

2. On paper, it provides better protections for people accused of crimes – like the right to a defence lawyer. In practice, all lawyers work for the state and rarely are prepared or able to mount an adequate defence without losing their job.

All defence lawyers in Cuba must belong to the National Organization of Collective Law Offices, which multiple sources say is closely controlled by the authorities. Applications by organizations of independent lawyers to legally register are consistently denied. Additionally, people detained for exercising their right to freedom of expression often tell Amnesty International about the difficulties they face in accessing a lawyer of their choice and criticize the lack of independence of public lawyers. Defence lawyers almost never provide families with copies of court documents, creating significant barriers for defendants to access justice at national or international level.

3. It maintains undue restrictions on freedom of expression.

While Article 59 “recognizes, respects and guarantees freedom of thought, conscience, and expression”, Article 60 retains the press as a property of the “socialist people” and the state retains control over the organization and functioning of all media. This is inconsistent with international human rights law and standards, that require states not to have monopoly control over the media and instead promote a plurality of sources and views.

4. It also stands to continue online censorship.

On the one hand, the text proposes the “democratization of cyberspace”, but on the other it condemns the use of the internet for “subversion” (Article 16.l). This could allow for criminal laws to be applied arbitrarily against independent journalists and bloggers, who already work in a legal limbo that exposes them to arbitrary detention, and whose work is already blocked and filtered.

5. It continues to place undue restrictions on freedom of assembly, demonstration and association.

Article 61 states that these rights "For lawful and peaceful purposes, are recognized by the State whenever they are exercised with respect to public order and compliance with the mandatory provisions of the law". However, international law and standards are clear that the only legitimate reasons to restrict these rights is for the protection of national security, public order, public health or morals, or the rights of others. In practice, protest by political opposition groups and human rights defenders are not tolerated by the authorities. For example, representatives of the Ladies in White, a group of female relatives of prisoners detained on politically motivated grounds, continue to be arbitrarily detained, usually for several hours each weekend, solely for exercising their right to freedom of association and peaceful assembly,

6. It undermines artistic expression.

Article 95.h protects artistic expression, but only when it conforms with “socialist values”. Not only is this provision an undue restriction of freedom of expression, but in practice, anyone who dares to speak out against the government is quickly labeled “counter-revolutionary”. One of the first laws signed by President Díaz Canal was Decree 349, a dystopian new law which stands to censor artists.

7. The reforms are unlikely to strengthen the independence of the judiciary or protect the right to fair trial.

Article 48 protects the right to be tried before a “competent, independent, and impartial tribunal established by law.” These are all key elements to ensuring the right to a fair trial. At the same time, Article 8 subordinates all organs of the state – presumably including the judiciary - to “socialist values” which in practice may allow for undue interference by the presidency in judicial decisions. Serious and on-going limitations on the independence of lawyers and the judiciary have been documented by Amnesty International and the UN for decades.

8. If approved, it will pave the way for Cuba to become the first independent nation in the Caribbean to legalize same sex marriage.

The revised Constitution defines marriage as between two people (Article 68) and prohibits discrimination on the grounds of sexual orientation or gender identity (Article 40). While these provisions are a huge step forward in the path for equality and dignity for all, LGBTI activists say authorities still tightly control LGBTI activism outside of state-sanctioned spaces.

9. It guarantees several economic, social and cultural rights.

The proposed Constitution recognizes that human rights cannot be divided and depend on each other to make them happen in a progressive way and without discrimination (Article 39). The state recognizes its responsibility for the protection of older people (Article 73), and people living with disabilities (Article 74). It recognizes the right of people to “dignified housing” (Article 82), and the responsibility of the Cuban state to guarantee the rights to “public health” (Article 83), education (Articles 84), water (Article 87) and food (Article 88). Nevertheless, in a context where the judiciary is not independent, enforcing these rights through the courts will be unrealistic in practice.

10. It commits Cuba to promoting the protection and conservation of the environment and to confronting climate change, which it recognizes as a “threat to the survival of the human species” (Article 16).

Cuba could strengthen this commitment further by joining fellow Caribbean countries in signing the Escazú Agreement, a major step forward for the right of people to access information and participate in policies, projects and decisions that affect the environment.