What next for U.S.- Cuban Relations?

CABA ON CUBA POSITION STATEMENT

The Cuban American Bar Association (“CABA”) was established in Miami in 1974 by a small group of Cuban-born attorneys adapting in a different culture. They depended on each other as resources to function in a foreign legal community. Today, as an organization with over 1300 members, CABA functions similar to other voluntary bar associations, but with some significant differences. CABA engages in a broad range of pro bono activities that include a pro-bono clinic, scholarship programs for law students at various law schools, the defense of human rights in Cuba, and the active promotion of sound judicial practices and judicial sensitivity training. In keeping with its proud tradition of defending and promoting due process and human rights in the United States and Cuba, CABA has adopted this position statement on a transition to democracy in Cuba.

We, CABA members, believe that we have a right and an obligation as Cuban Americans to participate and promote a peaceful transition to democracy in Cuba. To achieve this goal, we acknowledge and support the following fundamental principles:

1. That the Cuban people are entitled to live and enjoy the rights and duties of a functioning true democracy;
2. That the Cuban people are entitled to enjoy the fundamental human rights encompassed by the United Nations Universal Declaration of Human Rights;
3. That all the Cuban people, including those Cubans who have been forced to leave Cuba for political reasons, and their children, have an inalienable and fundamental right to participate in promoting and establishing of democracy and human rights in Cuba;
4. That the Cuban people are entitled to a free and fair process to draft a new constitution and an explicit Constitutional guarantee of personal rights, to establish of an independent judiciary, to elect legislators, and elect executive officials; and
5. As a starting point for Cuba’s transition to democracy, CABA petitions the immediate release of all prisoners of conscience held in Cuban jails, the dissolution of all internal state security organizations, the establishment of freedom of speech, religion, and association, the recognition of private property rights, and the open and unequivocal commitment of the Cuban government to the promotion and protection of human rights and a democratic process.

For more information on this committee or to join this committee, please contact the Committee Chairs or Co-Chairs directly.

Chair: Isabel Diaz   [email protected]

FUNDAMENTAL TRANSITIONAL LAW OF THE REPUBLIC OF CUBA

An Overview of the Work of the CABA on Cuba Committee in Connection With the Preparation of the Draft Fundamental Transitional Law of the Republic of Cuba By Eduardo Palmer

The Cuban American Bar Association (“CABA”) created the CABA on Cuba Committee several years ago based on the conviction that as Cuban-American lawyers we have a unique responsibility to use our knowledge and experience to play a significant role in the effort to reestablish the rule of law in Cuba. To date, this Committee has focused primarily on participating in the preparation of the Draft Fundamental Transitional Law of the Republic of Cuba (“Draft Transitional Law” or “Law”). The Law sets out a proposed legal framework to reestablish the rule of law and democracy in Cuba. The purpose of the Law is to provide a suggested path towards establishing a democratic government the day that the current regime in Cuba ceases to exist and a new government, which seeks to reestablish the rule of law and democracy in Cuba, is formed. The impetus for this project was not based on any desire to dictate to the Cuban people how they should govern themselves or to impose a system of government on the Cuban people against their will, but rather to create a road map which can be used by the individuals who comprise such a new government as a starting point when forming a transition government.

One of the most remarkable aspects of this project is the creation and makeup of the group that has come together to support this endeavor, the Foro Juridico Cubano. The creation of this group marks the first time in over 50 years of opposition to the current regime that all known groups of Cuban lawyers in exile from around the world, including lawyers in the United States and Europe, have come together with the common purpose of working to help reestablish the rule of law and democracy in Cuba. The Foro Juridico Cubano was created as part of the work of the CABA on Cuba Committee and today consists of the following organizations: CABA; Colegio de Abogados de La Habana en el Exilio; Colegio Nacional de Abogados de Cuba en el Exilio; Colegio de Notarios Públicos Cubanos; and la Asociación Cubano-Española de Derecho. The group has shared its work with the leading dissident group of lawyers in Cuba, la Corriente Agramontista, because it recognizes the importance of reaching out to and requesting input from such organizations as part of this effort.

In a community often characterized as being divided by ideological and personal differences, the Foro Juridico Cubano stands out as an organization that spans various generations of Cuban lawyers, often with divergent ideologies, legal training, and life experiences, who have, through compromise and mutual respect, managed to work cooperatively toward a common goal. For example, the group includes attorneys who were educated and practiced law in Cuba prior to the current regime, attorneys who were educated and practiced law in Cuba under the current regime, and attorneys who received their legal education in the United States or Spain and have never practiced law in Cuba. The philosophy of the group is to serve as objective professionals whose sole focus is to work to reestablish the rule of law and democracy in Cuba, rather than to advance any particular ideology or partisan political agenda.

This project is also significant in that as far as we are aware, it is the first time that a group of Cuban lawyers has undertaken the task of drafting a detailed transitional law for Cuba in an effort to avoid the occurrence of an institutional vacuum should the desired transition come about as a result of an immediate collapse of the current regime. While some groups in the past have drafted constitutions and made other proposals intended to assist Cuba in its transition to democracy, no group of Cuban lawyers has ever endeavored to draft a detailed transitional law for Cuba. Although our group considered the idea of drafting a constitution, that notion was rejected because we believe that a constitution should ideally be the product of a constitutional convention where freely and democratically elected representatives of the population meet and debate the merits of various constitutional proposals. Conversely, a transitional law is by definition a temporary document that is typically drafted quickly when a government collapses in order to fill an institutional vacuum and pave the way towards self government, including the drafting and approval of a constitution.

The preparation of the Draft Transitional Law represents several years’ worth of work. The CABA on Cuba Committee was established in 2006 and the Foro Juridico Cubano was created in 2007. The Foro Juridico Cubano began its work by reviewing many of the transitional laws that have been used throughout the world in the last half century. The purpose of this review was to get a sense of the vast array of issues that are typically addressed in such laws, along with the various mechanisms that are used to deal with those issues. The group also studied Cuba’s legal culture and history, including constitutions and other laws enacted prior to and after the existence of the current regime, in order to ensure that the Draft Transitional Law comported with Cuba’s legal traditions and culture to the furthest extent possible. In addition, the group sought advice and input from public international law scholars and individuals who were involved in transitional governments in Eastern Europe and Latin America. The goal of all of these efforts was to draft a document that followed international public law norms for transitional laws and was tailored to address Cuba’s own needs and legal culture.

The Draft Transitional Law provides for a two-year period of transition during which a transitional government will work to create the necessary infrastructure to conduct free and open elections in Cuba in order to establish a democratically elected government. The Draft Transitional Law is divided into the following six main sections: Title I – Transition; Title II – Public Authorities During the Transition; Title III – Judicial Power; Title IV – Defense of the National Territory; Title V – Political Reform; and the last section, which deals with various miscellaneous issues, Transitory Dispositions. One of the main objectives of the Draft Transitional Law is to maintain order and avoid the chaos which can occur whenever there is a leadership vacuum. As a result, the Law sets out a series of general principles necessary to promote the rule of law and provides that any existing laws that conflict with such principles are abolished, but preserves all other existing laws and institutions unless the same are abolished by the transitional government. For instance, the Law incorporates by reference the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948, and declares any existing laws contrary to the same void. The Law also seeks to strike a proper balance between the need to promote reconciliation and cohesion and the need to address injustices of the past, such as human rights violations. Another important objective of the Draft Transitional Law is to provide the necessary legal foundation to facilitate the rebuilding of Cuba’s infrastructure and promote foreign investment in order to advance the standard of living in Cuba and provide economic prosperity for the Cuban people.

The Draft Transitional Law remains a work in progress. The group intends to continue to improve and refine the current draft by working with Cuban legal scholars and intellectuals, leading organizations and individuals that have experience and expertise in this area, including bar associations from the Americas and Europe, and transitional law experts within the United Nations and others. Most importantly, the group recognizes that this work must ultimately reflect the will of the people currently living in Cuba in order for it to constitute a viable roadmap for a return to the rule of law in Cuba, and thus intends to continue its efforts to work with dissident groups within Cuba on this project. And, of course, the Law will have to be revised and adapted to deal with the particular circumstances present in Cuba when the current regime ceases to exist and the period of transition commences.

The work ahead also involves the need to disseminate the Law among the Cuban people currently living in Cuba and those in exile, as well as among those international organizations and nations that may possibly play a role in helping Cuba transition to democracy. In particular, it is important that officials within the current regime in Cuba know that this Law exits because such individuals may be in a position to actually help bring about such change. Our hope is that these individuals, to the extent that they desire a transition to democracy, will recognize that the Law is not focused on retribution and instead tries to promote reconciliation among the Cuban people. The Law, which was drafted in Spanish for obvious reasons, is available to the public on CABA’s website, along with an English translation of the same. The work on the development of the Draft Transitional Law demonstrates that even after 50 years of the absence of a government that represents the will of the Cuban people, we have not lost hope or the willingness to work and struggle to reestablish the rule of law and democracy in Cuba.