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10.30.2011

Fidel Castro's Right to Rebel

Tom Ginsburg and I are currently exploring the causes and effects of “right to rebel” provisions in constitutions. One of the country studies we will be including in our upcoming article on the subject is the following example from Cuban History. We would very much welcome any comments on the topic, or suggestions as to other countries that may provide similarly relevant historical illustrations.


Case Study - Right to Rebel in the Cuban Revolution

The Cuban Constitution of 1902 was written shortly after the country became independent following the Spanish American War. As might be expected from the political context of its creation, this constitution was a very US-friendly document and into it was incorporated the controversial Platt Amendment: a provision establishing US land and economic control over the island, and allowing for US intervention over Cuban domestic affairs.


In 1933, a group of army commanders overthrew president Gerardo Machado in an uprising known as “the Sergeant’s rebellion.” Among them was a young Fulgencio Batista. Batista was a mulatto (and a coup leader) and these traits often put him at odds with Cuban landowners and high society. Thus while Batista remained firmly in control of the army throughout this period of 1933-1940 he was forced to rule from behind a series of more socially palatable figurehead president.


The 1901 Constitution had been suspended in 1934, and replaced with an abrogated provisional constitution that did away with the Platt Amendment and secured some basic rights, but mostly just outlined the norms and responsibilities for various bodies in the provisional government. A formal, finalized constitution was not put in place again until 1940. This Constitution did not include a right to rebel provision although some contemporary Latin constitutions such as Guatemala, and Honduras already had a constitutional “right to insurgency” in place.


This constitution was initially considered to be quite progressive for its time. The new document, (a) substantiated voting as a right, obligation and function of the people; (b) endorsed the previously established form of government, specifically republican, democratic and representative; (c) confirmed individual rights and privileges including private property rights; and (d) introduced the notion of “collective rights.”


With universal voting rights having been established Batista was finally able to become president in his own right despite the antipathy of the traditional ruling class. In the 1940 election he ran as a progressive populist and remains the only non-white president Cuba has had to this day.


The 1940 Constitution also established a right to rebel. Article 40 reads:


ART. 40. Provisions of a legal, governmental, or any other nature that regulate the exercise of the rights guaranteed by this Constitution, shall be null if they abridge, restrict, or corrupt said rights.


Adequate resistance for the protection of individual rights previously guaranteed, is legitimate.


Violations of this title shall be prosecuted by public action, without precaution or formality of any kind, and by simple denunciation.


The enumeration of the rights guaranteed in this title does not exclude others established in this Constitution, or other rights of an analogous nature, or those that are derived from the principle of the sovereignty of the people and from the republican form of government. “


Previous critics of Batista had been vocal in denouncing the inherent irony at the prospect of Cuba democratically electing a man who had brought down the previous constitutional regime, into the position where he would be most responsible for defending the new one. The inclusion of a “right to rebel” in the 1940 Cuban Constitution provided validation for the 1933 coup which served as an important source of legitimacy for Batista during his presidential run. Article 40 was a double-edged sword however, a Faustian shortcut which in short order turned against its creator. As Tom Ginsburg and I will argue in an upcoming article, this may be a deceptively common occurrence.


In 1944, Batista peaceably resigned the presidency and traveled to the United States. He returned and attempted to run for reelection in 1952 but when the polls placed him in a distant third, he instead used his influence within the army to orchestrate a second coup, seizing power undemocratically and cancelling the upcoming election. Fidel Castro, a young lawyer who had previously been running for a parliamentary seat in the canceled election, openly began fomenting rebellion against Batista in response. From the outset Castro justified doing so by invoking article 40.


In 1953’s History Will Absolve Me, a speech given by Castro during his first trial, the rebel argued that:Cuba is suffering from a cruel and base despotism. You are well aware that resistance to despots is legitimate. This is a universally recognized principle and our 1940 Constitution expressly makes it a sacred right, in the second paragraph of Article 40.”


In 1957, Dr. Carl Manuel Urratia Lleo likewise turned to Article 40 in his widely publicized dissenting opinion as the minority vote in a 3 Judge tribunal that convicted 40 Cuban youths for armed rebellion against the Batista Regime. Having thus angered the dictatorship Urratia Lleo fled to Miami and he remained there as a vehement philosophical critic of the regime until he was picked by a newly triumphant Castro to be the country’s first revolutionary president in 1959.


The new revolutionary rulers immediately suspended the constitution of 1940 and governed without any constitution in place until 1976. When a new constitution was eventually put in place, the right to rebel outlined in Article 40 (or it’s philosophical equivalent) was nowhere to be found. And while Urratia Lleo did not take long to run afoul of the revolution, again leaving Cuba for exile after only six months as president, the Castro regime remains in place after more than 50 years.

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