Patria de Martí Artículos y Ensayos

Alfred G. Cuzán[2]

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This essay proposes the framework of a mixed constitution for a free Cuba.  By “free” I mean a republican, i.e., representative regime where the government is the product of competitive elections and the population enjoys judicially safeguarded political and civil rights.[3]  By “mixed” I mean one that, in keeping with Aristotle’s advice, incorporates several competing political principles or values in one coherent arrangement.[4]Finally, by “constitution,” I do not mean simply “a mere demarcation on parchment of the constitutional limits of the several departments,” as James Madison aptly put it, for that “is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”[5]Rather, I have in mind what Sartori calls the “living” or “material” constitution, i.e., “the actual configuration of the system.”[6]  It is a structure or pattern of political power that is aimed at here, one thatis expected to emerge from a set of enforceable rules specified in the constitutional text.   

Two theoretical assumptions underlie this essay.  One is that political institutions matter.[7]  That is, the constitutional allocation of authority across offices of the state and the rules for electing or appointing public officials and limiting and staggering terms of office structure political incentives and constraints in a predictable manner. Different arrangements make a qualitative difference on how well democracy works.[8]  The other is that, particularly at founding moments in a nation’s history,[9] people can purposefully design their own institutions, that they are not “forever destined to depend for their political constitutions on accident and force,” but are “really capable” “of establishing good government from reflection and choice.”[10]

This is not to deny Alexis de Tocqueville’s conclusion that culture is more important than the laws in making democracy work.  Assessing that “American legislation, taken as a whole, is extremely well adapted to the genius of the people and the nature of the country which it is intended to govern,” de Tocqueville went on to note that “American laws are therefore good, and to them must be attributed a large portion of the success that attends the government of democracy in America; but I do not believe them to be the principal cause of that success[;] . . . their effect is inferior to that produced by the customs of the people.”[11]However, that at any given moment laws place second, after customs, in determining the success of democracy is no reason to give them short shrift.  In planning for a free Cuba, one should aim at designing the very best set of rules suggested by contemporary political research so as to make the most of that “large portion” of democratic success which is attributable to them.  Moreover, one should not assume that political culture is frozen.  It itself is subject to gradual modification by institutions.  As Lijphart observes, the Swiss did not always have a consensual political culture, having been embroiled in several civil wars.  Although it takes time for institutions envisioned in a constitution or laws to take root in and modify the political culture,[12] and although they usually take a life of their own, evolving in ways not entirely anticipated by those who begot them, it is supposed that, like the characteristics of domesticated animals and plants, the way a country conducts its political life is subject to human manipulation.[13]

In crafting a constitution, then, one would be well advised to consider recent empirical findings of the “neo-institutionalist” school of political science, particularly the work of Lijphart on two types of democracy and Shugart and Carey on presidentialism.  Lijphart compares the operation and performance of what he calls majoritarian and consensual democracies in thirty-six countries.  The former concentrate political authority at the national level, where it is exercised by a prime minister whose party’s legislative majority in a single or dominant lower house of parliament is disproportionate to its actual share of the popular vote.  This is most likely to occur when legislators are elected from single-member districts according to a first-past-the-post rule, under which the candidate with the most votes, even a simple plurality, wins.  In a majoritarian democracy, the judiciary, as well as other institutions such as the central bank, plays a subordinate role to the legislature, which can amend and interpret the constitution more or less at will, limited only by tradition, public opinion, and its own self-restraint.  In turn, parliament is dominated by the prime minister and his cabinet, who are leaders of the majority party; other parties are relegated to playing the role of opposition.  The United Kingdom is the model of majoritarian democracy.[14]

By contrast, in consensual democracy authority is separated horizontally across branches of government and divided vertically between national and sub-national levels according to a relatively rigid (i.e., difficult to amend) written constitution, under which ordinary laws are subject to judicial review, as in the United States.  Vertically, sub-national units enjoy a great deal of legislative and fiscal autonomy either in a federal or a decentralized unitary regime.  Horizontally, a legislature that is independent or not dominated by the executive is divided between two chambers, each elected by different rules and for different lengths of term. 

Where the executive is a creature of parliament, it is normally composed of members of a coalition cabinet in which several parties are represented.  This arrangement is usually the result of proportional representation in legislative elections.  Where the executive and the legislature are elected separately, as in the United States or France, it is not unusual for each to be controlled by a different party, a circumstance necessitating inter-party “cohabitation,” as the French call it.  This involves having to compromise on major issues and, in some cases, working out a de factobi- or multi-party coalition spanning the two branches of government.  Other institutions, like the judiciary and central bank, enjoy a great deal of autonomy from both the legislature and the executive.  Switzerland is the prototype of a consensual regime.[15]

When comparing the two forms of democracy on a series of performance measures Lijphart found that, although tied on most indicators, where a difference between the two types was discernible with the usual statistical tools, it was invariably in favor of the consensual variety.  Of particular importance was this regime’s relative superiority at reducing political violence and representing the interests and values articulated by minority parties, a factor that contributes to legitimating the regime.  Thus, Lijphart concludes that “the consensus option is the more attractive option for countries designing their first democratic constitutions or contemplating democratic reform” (my emphasis).  He recommends, therefore, that “[d]ivided power institutions--strong federalism, strong bicameralism, rigid amendment rules, judicial review, and independent central banks . . . be prescribed by means of constitutional stipulations and provisions in central bank charters.”[16]

Lijphart recognizes that certain features of consensual democracy are not easily transplanted across regions.  For example, in Latin America, where presidentialism has long been the norm, parliamentarism is unlikely to be adopted, or if adopted, to survive.[17]  Also, with an implicit bow to de Tocqueville, he realizes that “consensus democracy may not be able to take root and thrive unless it is supported by a consensual political culture.”[18]  Yet, the latter obstacle is not insurmountable because the relation between culture and institutions is reciprocal:  “although a consensual culture may lead to the adoption of consensus institutions, these institutions also have the potential of making an initially adversarial culture less adversarial and more consensual.”[19]

For their part, casting a skeptical glance at the academic consensus against presidentialism forged, inter alia, by Linz and Stepan,[20]Shugart and Carey find that the survival of this type of democracy depends on the actual distribution of authority between congress and president, on the one hand, and the party system, on the other, which are a function of the constitution and electoral rules, respectively.[21]They argue that the performance of presidentialism varies according to the relative powers vested in president and congress, their respective controls over cabinet formation and survival, and the number and internal cohesion of parties represented in the legislature.  Presidential systems which centralize authority in the executive are the most vulnerable to breakdown.  Where the president is granted legislative powers such as a strong veto, exclusive prerogative to submit bills over certain policy areas, strategic initiative over the budget, and rule by decree, and where he has authority to go over the heads of congress by calling a popular referendum to enact his program into law, executive-legislative relations tend to deteriorate to the point where the risks of regime breakdown become unacceptably high.  By contrast, the longest-lived presidential democracies are those where the constitution contemplates a president whose role in the making of laws is marginal at best.[22]  Costa Rica, the oldest continuous democracy in Latin America, is a case in point.

Another problematic type is what they call the “presidential-parliamentary” regime, one of shared authority over the cabinet, with the president being free to appoint and dismiss but the parliament has the authority to censure and force the resignation of ministers.  This form of government, plagued by “‘confusion’ over to whom the cabinet is responsible, is a recipe for dangerous cabinet instability.  This is especially true where one branch alone names the cabinet to begin with.”[23]  In a confirmatory study of fourteen Latin American countries over a ten year period, Jones, too, found that “the legislature’s possession of the power to censure government’s ministers results in an increased level of executive-legislative conflict.”[24]  As I shall show, this was an unfortunate feature of the Cuban Constitution of 1940.

In the remainder of this essay, I draw on the aforementioned research findings to design a framework for crafting a constitution for a free Cuba.  My purpose is not to expound on all the elements that go into a constitution.  Rather, I limit myself to sketching what, according to Sartori, should be its “core and centerpiece,” i.e., a “frame of government.”[25]  That means a plan for partitioning authority horizontally, across branches of the national government, and vertically, among levels of government, specifying qualifications for office, election or appointment rules, and length and staggering of terms for each office.  Much of what follows is rather conventional, incorporating as it does variations of constitutional formulas of long usage, either in the United States or, as in the case of the supreme electoral tribunal, Costa Rica. However, I do offer a few innovations that, as far as I know, have not been tried elsewhere.

I begin with a brief discussion of the last democratic constitution of Cuba, that of 1940, paying particular attention to what I consider to have been its principal structural weaknesses.  Next, I lay out my proposal.  Then I analyze it in light of the literature discussed above, and compare and contrast its most salient features to those of the 1940 Constitution.

The Constitution of 1940.

The Cuban Constitution of 1940, the product of an assembly elected for the purpose in which every political current, including that of the communists, participated, though short-lived, having been in effect a mere twelve years, soon attained mythic status among generations of Cubans.[26]Its legitimacy was such that, when Fulgencio Batista’s 1952 coup d’etat rendered it de facto inoperable, “its restoration soon developed into the rallying cry of the opposition movement.”[27]In 1955, having emerged triumphant in a single-candidate “election” arranged the previous year, even the dictator himself felt compelled to declare that the constitution was again in effect.  Following Batista’s flight four years later, Fidel Castro initially pretended only to have had amended the constitution, even though from the very beginning his regime was in clear violation of its most basic provisions, such as proscription of the death penalty, prohibition of expropriation of property except for matters of public utility or interest and then only after judicially-adjudicated compensation, independent courts, elections for legislative and executive offices, and amendment procedures.  Today, more than six decades after its disemboweling by Batista and discarding by Castro, there are those who argue not only that restoration of the 1940 Constitution should be the first order of business of a post-Castro provisional government but that, it never having been abrogated, the 1940 Constitution remains in effect (in some sort of legal limbo, I suppose).[28]

Institutionally, the 1940 Constitution attempted to do the very thing which Shugart and Carey believe one should avoid, i.e., construct a “presidential-parliamentary” republic.[29]  It provided for separate but concurrent elections of a president and a bicameral congress, all to a four-year term, with half the lower house elected every two years.  The president was free to appoint and dismiss members of his cabinet, but these, including a prime minister, were responsible to the congress.  Either house could interpellate and censure ministers individually or the cabinet as a whole, upon which vote of no confidence they were required to resign.  The president, however, was free to reappoint them to another portfolio. 

As diagnosed by Shugart and Carey, this recipe was, indeed, problematic.[30]  Too much scarce congressional energy (and it was scarce, absenteeism being rampant) was spent in a tug of war with the president over his ministers.  On one occasion, the congress censured the Minister of Commerce, whereupon President Ramón Grau San Martín made manifest his contempt for the legislature by promoting him to head Foreign Relations, an action that left the opposition frustrated and bitter.  A contemporary analyst noted that “dangerous friction between executive and legislative branches in the years 1945-1947 presage further deterioration in the chances of ultimate successful operation unless both branches cooperate earnestly to give meaning to the Constitution.”[31]But the problem was not only that of a lack of good will on the part of political adversaries, which was undoubtedly in short supply, with demagogic scandal-mongering and irresponsible oppositionism the order of the day, but also structural, the consequence of a “confused” division of authority between the president and the congress over the cabinet.[32]

Two other structural problems in the 1940 Constitution are worth mentioning.  One, shared with many others in Latin America, prohibited the immediate reelection of the president, but allowed him to run again after two terms had elapsed.[33]  One can expect such a rule to have two effects.  One, in his first term the president or his supporters will spend some of his political capital over a scheme to amend the constitution to allow him to run for reelection.  Two, if this stratagem fails, following the end of his term the former president will not abandon the spotlight completely, but from time to time will call attention to himself, hoping for a comeback. Nor he will let go the reins of his political party.[34]

This appears to have happened in the case of President Grau San Martín, elected in 1944.  First, he intrigued to amend the constitution.  That went nowhere, it having met with opposition even from within his party, the Auténticos.  So, after vacating the presidential palace he lost no time in criticizing his successor, Carlos PríoSocarrás, a former protégé, expressing regret at having “‘made’” him president and characterizing him as an “‘unfaithful disciple’.”[35]   That set the two men at loggerheads.  For his part, Batista, who had won a senate seat in 1948, and was eligible for election to the presidency in 1952, entered the race.  A May 1951 survey showed him trailing badly, with only 20 percent of respondents favoring his candidacy. Less than a year later the Auténticos still outnumbered Batista’s party two to one among registered voters.[36]  Three months before the election, Batista staged a coup.

If it is a mistake to prohibit presidential reelection—andI believe it is—theerror is only compounded by allowing the president to try again after sitting out one or two terms.  Better to limit the president to one sole term, as is done in Mexico, than having him wait in the wings until he is eligible to run again.But it is preferable to allow at least one reelection.  As Alexander Hamilton put it in Federalist 72, “re-eligibility”

is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits.  The last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration.[37]

The last organic problem in the 1940 Constitution I will take up has to do with the organization of provinces.  It provided for the election of a governor, but not of a provincial assembly.  Rather, a provincial council, made up of all the mayors of the province, was to exercise the legislative power.  It was given authority to draw up a budget, to be financed by assessing each member municipality a quota in proportion to its revenues.  In this aspect, the provincial government resembled a confederal arrangement.  Not having read any studies of their operations, I have no empirical knowledge how the provincial governments worked in practice.  However, my guess is that they were plagued by collective action and free-rider problems that are the bane of  confederations, i.e., indifference or shirking on the part of many of their members, great difficulty in getting them to agree to undertake projects of common interest, and many municipalities falling in arrears with their financial obligations. 

That said, and without minimizing the seriousness of these organic flaws, the Cuban Constitution of 1940 amounted to an earnest attempt to decentralize authority in a manner that is consistent with consensual democracy.  Specifically, it provided for a bi-cameral congress, judicial review, an electoral tribunal administered by the judiciary, a Tribunal de Cuentas (a national inspector of accounts charged with auditing the books of all government entities), and municipal autonomy.  At a time when most of Latin America and Europe were under the thrall of one dictatorship or another or rent by political conflict, this was no mean feat. As Hugh Thomas put it, “The new Constitution was one of the most serious political achievements of the Cubans, and it was achieved as a result of an unusual degree of cooperation between the different politicians.”[38]

A Proposed Constitutional Framework.[39]

In this section, I present a constitutional framework for a free Cuba. I begin with a set of working assumptions.  First, that in Cuba, as elsewhere in Latin America, it would be futile to attempt to introduce a parliamentary system.  The constitution will be presidential.  Second, that the Cuban state will be unitary, not federal.[40]  And third, that the new republican regime will restore the six historic provinces of Pinar del Río, La Habana, Matanzas, Las Villas, Camagüey, and Oriente.[41]  This would be desirable for a number of reasons, not least that these units would be large enough, in area or population, to support strong regional governments that, collectively, would function as an effective counterpoise to the national level.  A related advantage derived from their size is that, if the provinces were made coterminous with electoral districts, these would be of sufficient magnitude to reduce the probability of electoral disproportionality.[42]

In a unitary republic, it is meet to begin with the national government.  Here authority is to be partitioned into overlapping branches, legislative, executive, and judicial.  As in the 1940 Constitution, the legislative power, including the power to tax and spend, would be vested in a bicameral congress, composed of a lower house (cámara de representantes) and a senate (senado).  The congress would also have the power to impeach the president, vice-president, all cabinet and sub-cabinet officers, as well as all judges, but only for cause. 

To be eligible for election, candidates for all legislative offices would be required to be Cuban citizens.[43]To run for congress, a candidate for the cámara would have to be 25 years or older, and for the senate 30. The cámara would consist of 125 members,^[44] known as representantes apportioned to the provinces according to population.[45]The representatives would be elected to a three-year term[46] according to a system of proportional representation by party list,[47] the province serving as an electoral district.[48]The terms would be staggered, one third of the cámarabeing up for reelection every year.^[49]There would be no limit on reelection.  The parties would have to receive at least five percent of the provincial vote to elect any members. 

The senate would consist of 36 members, six from each province, elected at large, to a six-year term.^[50]  The terms would be staggered so that every year one-sixth of the senators, one per province, would be up for reelection.^[51]  Any candidate who comes first with more than 40 percent of the provincial vote is declared the winner; if no candidate crosses that threshold, within a month a second round would be held between the two top vote getters.Again, there would be no limit to reelection.

Legislation could originate in either the cámara or the senate, except for expenditure and revenue bills, which would have to be voted out of the lower house first.  In both chambers, a simple majority of the membership would constitute a quorum. To be enacted into law, a bill would have to be approved by both houses. Differences between the two versions of the same bill would have to be ironed out in conference.  A three-fifths vote in both chambers would override the president’s veto.  All cabinet departments and agencies not specifically mentioned in the constitution would be established by law. Their employees would be required to testify under oath regarding the performance of their duties when called upon to do so before either branch of congress.

Additional congressional checks on executive power would be divided between the two houses as follows.  All appointments (but not their dismissal) to the president’s cabinet,except for four reserved for the senate,would need approval by the cámara.  Appointments to the departments of foreign affairs, interior (police), justice, and treasury,and to the boards of autonomous agencies (more about these below), as well as ambassadorships, and promotion of military officers to the rank of general (and their equivalent in the air force, navy, other armed services, and national police), would require confirmation by the senate.  So would appointments to the highest courts.  Also, all treaties with foreign nations would need senate ratification by a two-thirds vote of those present.[52]Impeachments would originate in the cámaraby majority vote and trial would be conducted by the senate, with the chief justice of the Supreme Court presiding, conviction requiring a two-thirds vote.

The executive power would be vested in a president, elected in a nation-wide popular vote for a three-year term. To be eligible for election, a candidate would have to be at least 40 years old. The president would be eligible for reelection three more times, either sequentially or after a break, for a maximum tenure in office of twelve years.[53]As with elections to the senate, any candidate who comes first with more than 40 percent of the vote is declared the winner; if no candidate crosses that threshold, within a month a second round would be held between the two top vote getters.[54]Along with the president, a vice-president of the same party or coalition of parties would also be elected on the same ticket.  The vice-president would have to meet the same qualifications as the president, and would assume the presidency in case of death, resignation, or disability of the president.

The president would be charged with “faithfully executing the laws,” act as commander in chief of the armed forces and national police, be responsible for conducting foreign affairs, and subject to senate confirmation make appointments to the cabinet, ambassadorships, the autonomous agencies, and the courts.

On the other hand, the president’s legislative power would be limited to a moderate veto (congress could override with a three-fifths vote of both houses), which must be cast within ten working days of congress having sent him a bill.  He would not have line-item veto authority:  any bill would have to be vetoed in its entirety or not at all.  Concerning “pocket” vetoes, this would be discouraged by the following rule:  any bill sent to the president fewer than ten days before the congress adjourns, which he neither signs nor vetoes, becomes law if, within three months of the new session of congress, it passes both houses by simple majority vote.  The president would be explicitly prohibited from issuing decrees except for the express purpose of implementing a law or judicial decision, regulating a statute as provided for by congress, or arranging the internal administration of the executive branch, narrowly conceived, and then again never contrary to law.  In other words, “the authority of the executive to establish laws in lieu of action by the assembly”[55] would be nil.

As for the budget, the president would be required to submit a proposal nine months before the start of the new fiscal year, but it would be up to the congress to decide what, if any, of the president’s plan to adopt in one or more revenue and expenditure bills.  Neither would the congress have to wait for the president’s budget to consider revenue and appropriations bills.  This would reduce the executive’s strategic advantage over fiscal policy, an advantage derivative from his having the budgetary initiative, as is the case in many countries,[56] including the 1940 Cuban Constitution.  

The judicial power would be vested in the courts, to consist of ordinary tribunals established by law,[57] capped by a supreme court, and one constitutional court.  The former would be the final court of appeals in law and equity in civil and criminal cases. Questions regarding the constitutionality of any law, decree, ordinance, or regulation issued by any level of government, or of judgments rendered by the supreme court, would fall under the jurisdiction of the constitutional court.  Appointments to these two bodies would be made by the president, subject to senate confirmation.  To be eligible, candidates would be required to have a law degree from any accredited university in the world and be at least 40 years old.  There would be a mandatory retirement age of 70.  Both courts would consist of ten members, nine associate justices and a chief justice.  Except for the chief justice, whose appointment would extend until retirement, the term of office would be nine years, renewable once.  In both the supreme and constitutional court, the chief justice would chair meetings and would have voice but no vote except to break a tie.  All judicial appointments would be staggered so that one-third of the membership would be up for reappointment every three years.[58]

A number of autonomous agencies would be charged with administering a range of public responsibilities. The following would have constitutional standing:  an electoral tribunal, a Tribunal de Cuentas, the central bank, and university boards of trustees.  The electoral tribunal would be charged with voter registration, administering elections, certifying winners, and apportioning seats to parties according to the proportional representation formula specified by congress.The Tribunal de Cuentaswould be charged with auditing government accounts at all levels, national ones annually and provincial and local ones at least biennially, something it would either do itself or contract out to CPA firms, reporting its findings to congress and making them available to the press and the public.  The central bank would be charged with safeguarding the value of the currency so that it is not eroded by inflation.  Public universities would be governed by boards of trustees that would set policy, appoint top administrators and generally oversee their operations.  (There would be no prohibition against provincial or private universities.)Except for the supreme electoral tribunal, these agencies would each be governed by a nine-member board appointed by the president with the consent of the senate, for staggered, nine-year terms, with one-third of the membership renewable every three years, with reappointment possible for another term, sequentially or after a break.  For its part, the supreme electoral tribunal would be governed by a nine-member board appointed by the constitutional court for the same length of term and schedule for staggering appointments as those applicable to itself.  The congress would be free to create additional autonomous agencies by law. 

Below the national government, there would be provincial governments and municipalities.  Both the provincial and the local governments would have legislative and fiscal autonomy, subject to the following constraints.  On the revenue side, taxes over exports and imports would be the exclusive prerogative of the national government, and in taxing (and regulating) industry and commerce provincial and local governments would be prohibited from discriminating between items produced or sold within their jurisdictions and those without.  On the expenditure side, the national government could mandate provinces or local governments to provide for schools, water and sewers, public health, environmental protection, and other items the neglect of which at the regional or local level would have adverse national impact.  To ensure at least minimal compliance with national mandates, provincial or local officials who ignore or flatly refuse to carry them out would be subject to civil suits and liable to judicially-imposed fines.[59]  However, one would expect that the national government would rather rely on a fiscal carrot, offering grants-in-aid and similar subsidies to persuade recalcitrant provincial or local governments to comply.  Another means would be for the congress to hold hearings on the state of public services in jurisdictions that are grossly under-performing, something which would attract unfavorable publicity and, presumably, negative electoral consequences for the officials responsible.

Other than that, provinces and municipalities would be free to levy taxes on property, income, sales or consumption, charge user fees for any service, and borrow money by issuing bonds, subject only to such regulations as are deemed necessary to guarantee transparency in all their financial transactions and to pay off creditors in case of default.[60]  Similarly, over and beyond that required to fulfill national mandates, provinces and municipalities would be free to spend their revenues for any purpose that finds favor with the voters.  All provincial and municipal accounts would be subject to at least biennial auditing by the Tribunal de Cuentas or by CPA firms contracted by it for the purpose.     

Provincial governments would consist of an elected unicameral assembly, which would exercise legislative power, and an elected governor charged with executing the laws.  Half of the assembly would be elected from single-member districts and the other half by proportional representation to provincial party lists subject to a five percent threshold.[61]Single-member districts would be drawn following the contours of municipal boundaries.  Several municipalities of few inhabitants could be combined into one district, and one populous municipality divided into two or more districts, but in no case would a district be drawn with parts of two or more municipalities.  This would reduce the opportunity for incumbents to gerrymander districts.  All municipalities would be governed by a council or commission (elected by proportional representation, at large, or from districts, or some combination of the three) and either an elected mayor or an administrator appointed by and responsible to the council.

Within these constraints, each province would be free to draw up a charter to govern its own affairs, subject to approval by referendum of the residents of the province, on the one hand, and by the senate, on the other.  Similarly, each municipality would draw up its own charter subject to approval, on the one hand by its residents and, on the other, by the corresponding provincial assembly.  Also, municipalities may, by referendum, extend or contract their boundaries according to rules established by the provincial government. Provincial and municipal charters might include a provision for provincial and local courts, respectively, with jurisdiction over their own legislation or ordinances, or either or both levels may opt to rely on the ordinary national tribunals to interpret and adjudicate their own laws, regulations, or ordinances.  In either case, all decisions made by provincial and local tribunals would be appealable to the national judiciary. 

The electoral calendar would follow a three-year, staggered cycle of terms.  To begin the cycle, elections for all offices would be held simultaneously in the first year.[62]  The president, all provincial governors and mayors, and one-third of all legislators (senators, representatives, and municipal councilors) chosen by lot would serve a full term. At the end of the first year, one-third of all legislators chosen by lot would face the voters, and those elected would serve a full term.  The same process would be followed at the end of the second year with another third of all legislators chosen by lot. At the end of the third year, the president, all governors and mayors, and the remaining one-third of all legislators would be up for reelection. 

To amend the constitution, two options would be available.  One, initiated “from above,” would be by a two-thirds vote of both houses of congress, followed by a popular referendum, with a three-fifths margin required for enactment.  The other, initiated “from below,” would be for two-thirds of the provincial assemblies, each by a two-thirds vote, to endorse an identically worded proposed amendment, followed by a popular referendum at the next election, with a three-fifths vote required for enactment.  A transitory provision would stipulate that, upon completion of two full election cycles for the senate, i.e., in thetwelfth year, the votersby a three-fifths vote would decide whether to maintain the schedule of staggered terms or thenceforth to hold elections at all levels concurrently every three years.  If this amendment were adopted, senate terms would be staggered so that half its membership would be renewed every three years. 

Analysis and justification.

Although it does not fit it perfectly, several of the principal elements of the proposed constitution match those of a consensual type. These are: a legislature not dominated by the executive; a bicameral national congress, with the branches roughly equal in authority, elected according to different rules and for varying lengths of term; proportional representation in the lower house of congress; equal representation of the provinces in the senate; an independent constitutional court to which a relatively rigid constitution is entrusted; an independent central bank; additional autonomous agencies; and vertical decentralization, with elected provincial and local governments enjoying local autonomy.

Several features are sufficiently unusual or controversial as to require justification.  Frequent elections are desirable for a number of reasons.  For one thing, elections function as the linchpin of a republican regime, the pivot on which government policy moves in response to public opinion. In the ratification debates, one of the objections of the anti-federalistswas that the proposed constitution did not provide for annual elections for congress.[63] A problem with their argument was that it failed to distinguish between the length of term of an office and the frequency of elections. By staggering the terms of all legislative offices in the manner proposed here, the framework combines the best of both worlds: a sufficiently long term in office for stability and continuity in government, along with annual input from the electorate.  The latter feature should keep in check any majority’s tendency to exceed their mandate, as Erickson, MacKuen and Stimson found to be the case in the United States.[64]  Policy is more likely to be adjusted or fine-tuned in response to quick feedback from the public. Second, after more than two thirds of a century of dictatorship Cubans need to acquire, in relatively short order, the habits and skills of republicanism. Annual elections would speed up the learning process.[65]  Third, frequent elections hold out hope to the losers of any one contest of victory in the next.  They are much more likely to accept defeat graciously, something that contributes to legitimating the regime, if, having lost at one level, they can look forward to a new election at another level shortly thereafter. Thus, a losing presidential candidate can seek election to the senate the following year. Similarly, those who fail to win a seat in the senate or the lower house can contest another seat in either house of congress or look to provincial or local opportunities the very next year.  Again, with only one-third of all legislative seats up for election every year, the constitution strikes a balance between stability and change in government personnel and, hence, in policy.

A senate with fewer members than the number provided for in the 1940 Constitution (36 vs. 54), elected for longer (six years vs. four), staggered terms, so that one senator per province (one sixth of the total) comes up for renewal every year needs defending. First, the size, length of term, and schedule of senatorial elections are all meant to endow this body with sufficient authority, prestige, and independence, and the individual senators with enough stature so as to make the office an attractive alternative to the presidency for ambitious politicians.  Ambitious politicians whose hunger for political recognition cannot be easily satiated but for whom the presidency is an improbable attainment, as it must be for all but a handful of aspirants every three or four decades, should find a senatorial career to be a satisfying one.[66]In turn, their ambition (and jealousy, too)would be harnessed into providing checks on the inordinate pretensions on the part of an overweening executive.  As James Madison put it in Federalist 51, for a system of checks and balances to be effective in practice, “Ambition must be made to counteract ambition.”[67]More positively, channeling political ambition into a senate career would harness talent and energy into legislating and overseeing long-term public interests in the areas of foreign policy, the armed forces and national police, taxation and revenue, the currency, the justice system, higher education, in short, in all areas governed or regulated by institutions to which presidential appointments require senate concurrence. 

As to senate terms being staggered so that one-sixth or one per province is renewed every year, this would amount, in effect, to electing senators from single-member districts. This would tend to reduce the number of effective parties represented in that chamber, balancing the multi-party system that by design[68] is likely to emerge in the cámara, elected on a proportional representation system.  Also, at- large elections would allow for extraordinary persons who have distinguished themselves in other walks of life and have not previously been involved in internal party politics to make an independent run.  Such potential competition from independents would help prevent political parties from taking the voters for granted.  In short, the senate as conceived here would be a prestigious body, worthy of the cravings for distinction on the part of spirited individuals, something which would lend necessary ballast to the ship of state and function as an effective counterpoise to the executive even as it remains uniquely in tune with public opinion by annual electoral infusion into the chamber.[69]

As for equal representation in the senate by provinces that differ in population size, it need be said, first, that the ratio of the largest to the smallest of the pre-Castro Cuban provinces, Oriente and Pinar del Rio, respectively, is only about 6:1. This is nothing like the disparity in the United States, where California is 76 times larger than Wyoming. More to the point, though, equal representation in the senate takes into account the fact that a country or nation is not like one gigantic bag offreely rolling marbles that tilts this way or that in response to shifts in direction of the larger number. Rather, it consists of people who live and work in specific locations, eachwith its own distinctive geography, environment and social networks, to which they feel various degrees of emotional attachment.[70]To capture this plurality, a consensual constitution incorporates more than one principle of representation.[71]Thus, along with the principle of one person-one vote built into the election of the cámara and the presidency,[72] what for a lack of a better term one might call the federalist or corporatist principle is given electoral expression in the senate.  

It may be objected that having legislative elections every year will interfere with the process of governing.  One might surmise that the president and his party, on the one hand, and opposition parties represented in the congress, on the other, would be at constant loggerheads, seeking maximum electoral advantage from every disagreement or confrontation over policy.  Engaged in a permanent electoral campaign, they would be less likely to compromise over issues that divide them.  The plausibility of such a hypothesis led me to ask Professor Mark P. Jones to see if he could find a relationship between election year and executive-legislative conflict in his data set.  He graciously agreed to my request, and reported the results by e-mail:  "There was no statistically significant difference in the level of executive‑legislative conflict between election years and non‑election years for the analysis population of Latin American democracies during the 1980s and 1990s."[73]  This finding cannot be viewed as anything but tentative.  Nevertheless, it is at least reassuring to know that the test came out negative, that empirical evidence on executive-legislative conflict in one statistical test applied to Latin America over two decades does not lend ready support to what is otherwise an entirely plausible hypothesis.  In any case, if these results do not put the issue to rest, the fact that only a third of the lower house and one-sixth of the senate would be up for grabs every year may very well ameliorate the phenomenon, if it indeed exists.

A three-year term for all elected offices, including the executive (butexcepting the senate) is short by world standards and goes against the grain of Latin American practice. As far as I know, only Australia, New Zealand, and Sweden have tried it.By contrast, two-thirds of Latin American countries have adopted a five or six year presidential term. Yet, the advantages of a three-year presidential term are manifest.[74] If the incumbent makes wrong decisions, and loses public support, the nation is not saddled with an unpopular and hence weak executive for long.  Also, if congress and president reach an impasse, the stalemate will be short-lived, thus reducing the risk of the government becoming mired in chronic “immobilism,” one of the allegedly potential pitfalls of presidential regimes.[75]Furthermore, requiring the president to be endorsed by the voters within three years of his having been elected would contribute to his keeping in mind where the source of his authority lies. Instilling humility into presidents, who tend to be short on this virtue, would be desirable.

A last advantage of a three-year term is that it reduces the cost of presidential reelection.  That this is a sensitive subject in Cuban history is evident from the extremely difficult procedure which the 1940 Constitution stipulates before the clause prohibiting presidential reelection can be changed.  Twice in the nation’s history a revolt broke out when the incumbent president attempted reelection or to extend his term of office.  The traditional Cuban aversion to continuismo cannot but have become stronger after the seemingly interminable Castroite dictatorship, a dubious Latin American record.[76]Nevertheless, for the reasons offered when discussing the Constitution of 1940, I believe that, on balance, it is more prudent to allow reelection than to proscribe it.  By limiting the presidential term to three years, and keeping in mind that the proposed framework contemplates both a reduction of the president’s powers relative to the congress and autonomous agencies and a senate worthy of political ambition, presidential reelection should be less threatening to the opposition.  Lastly, to allow presidential reelection is not to guarantee it.  Nothing is more likely to deflate the pretensions of presidents and would-be presidents than an occasional defeat of one of their number in his bid for reelection.

            In summary, the constitutional framework proposed here combines several principles of institutional design and representation, hopefully for best effect. Although encased in a unitary design, the provinces and localities enjoy considerable autonomy to act within their respective spheres.  Horizontally, the division of powers across the traditional constitutional offices of executive, a bicameral legislature, and a judiciary is extended to include a constitutional court and several independent agencies, including a central bank, an auditing organ, and public universities.  The design incorporates two principles of representation, proportional and federal or corporate, and are held frequently in both single- and multi-member districts at several levels of government, municipal, provincial, and national.  Elected by proportional representation in provincial party-lists with a five percent threshold, the lower house of congress would likely include several parties reflecting multiple shades of opinion and interests, including many minority views. Majoritarian interests general to a province would find their voice in the senate, and those across the entire nation in the presidency.  The mode of election of the latter would satisfy the object of “counter[ing] the potentially disaggregating effects of legislative and subnational competition.”[77] With half of their membership elected by proportional representation and half from single member districts, the same combination of territorial and ideological interests would be fashioned in the provincial assemblies, with the governor providing the majoritarian counterweight.  A multi-party system is likely to emerge as a result.  My guess is that over time two or three large, multi-issue parties will take in most of the votes and an equal number of smaller parties, some with an occupational or strictly regional or local coloring will divide up the rest, thus giving expression to a wide variety and scale of opinions and interests.[78]

The analysis of the proposed framework would not be complete without a systematic comparison of its key provisions with those of the Constitution of 1940.  This is shown in the Appendix.  There are parallels as well as differences between the two designs.  Taking the correspondences first:  like the 1940 Constitution, the proposed framework calls for a presidential, bicameral, and unitary regime.  It provides for separation of powers and checks and balances between the executive and legislative branches, judicial review, a supreme electoral tribunal beyond executive or legislative control, an independent Tribunal de Cuentas, provincial governments, and municipal autonomy.  Both are difficult to amend.  Thus, in form, the two designs are very similar.

Substantively, however, the proposed framework is more consensual, taking the horizontal separation and vertical division of powers much farther than the 1940 Constitution.  The most important departures from the 1940 Constitution are the following.  First, the features characteristic of the “presidential-parliamentary”constitutional type are done away with in favor or a pure presidential regime, one where the survival of the cabinet is independent of the legislature (except in cases of impeachment).  Second, the president is elected by a qualified plurality vote for a three-year term, with reelection for up to three more terms permitted.  Third, the lower house of congress is electedfor a staggered, three-year term while the senate is elected for a six-year term, staggered so that every year one senator per province is elected.  Fourth, such functions as judicial review, the administration of elections, and a central bank, all contemplated in the 1940 Constitution, are placed in separate, specialized, autonomous institutions.  Fifth, a full-fledged provincial government—withan elected assembly and an elected governor—isprovided for, and both provincial and municipal governments are granted greater autonomy.  Finally, appointments to the supreme and constitutional courts would not be for life but for fixed, renewable terms.[79]

Conclusion.

The constitutional framework proposed in this paper is intended to promote the establishment and development of a presidential democracy in post-Castro Cuba which, although necessarily majoritarian in some aspects, incorporates many elements associated with consensual democracy.  In form, the design parallels the Cuban Constitution of 1940 in most respects, an attribute that should enhance its palatability.  Substantively, the proposed framework retains the better features found in the 1940 design while remedying its structural flaws, and introduces certain innovations designed to make for a more perfect democracy.  It is hoped that this proposal will contribute to discussion and debate pursuant to the crafting of a magna carta for a free Cuba.

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