February 2012 • Volume 100 • Number 2 • Page 68
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ISBA Goes to Cuba
An ISBA delegation visits Cuba to learn about the Cuban legal system and teach about ours.
This past October, a small group of ISBA lawyers had the privilege of traveling to Havana, Cuba to observe the Cuban legal and judicial system. It was a rare opportunity to compare and contrast our approaches. Though just a couple of letters separate ISBA and CUBA, we were worlds apart. Yet after a week of discussions, we learned that we share some of the same goals and interests.
As soon as we stepped off our airplane, we knew we were in another world. We ran like children on Christmas day to the parking lot to photograph the vintage Fords and Chevys from the 1950s. We witnessed the beauty of Havana, a land where time has stood still but apparently is now on the move.
Yet I experienced an unsettling feeling when I saw the large monuments to Fidel Castro, Che Guevara, and Jose Marti. This is not yet a totally free country. Cellphone reception was nonexistent. Internet usage at our hotel crawled so slowly that we couldn't realistically communicate with the outside world.
But we learned so much. Each morning our daily meetings started at the headquarters of the National Union of Cuban Jurists (UNJC). There we met with law professors, lawyers, judges, and justices and had lively discussions learning about and challenging each other's systems.
The judiciary - not a coequal branch
A fundamental difference between the Cuban legal system and ours is that their judiciary is not an equal third branch of government. Judges do not have the constitutional power to overrule statutes and are subordinate to the executive branch.
Another major difference is that the principle of stare decisis does not exist in Cuba. The courts do not abide by precedent. Rather, they simply apply the applicable statute to the facts presented. In fact, both trial and appellate courts hear each case de novo.
The court system has a wide geographic reach and operates on various government levels. There are three tiers of courts: national, provincial, and municipal. Cuba has 15 provincial and 168 municipal courts. There are six courts of justice: criminal, labor, civil, economic, state security, and military. The courts are subordinate to the National Assembly of People's Power, Cuba's parliament.
A courtroom will generally have three to five judges on the bench depending on the type of case. At least two of these will be "lay judges," persons without a law degree who are elected to five-year terms. There are no juries.
The Cuban Constitution has 15 chapters and 133 articles. The National Assembly of People's Power is the only body invested with "constituent and legislative authority" and holds two regular sessions a year and special sessions under certain circumstances. If statutes are changed, this typically happens at the Assembly meeting. This Assembly elects the Council of the State, which consists of the President of Cuba, six vice presidents, and 23 other members.
Despite the lack of independence by American standards, the Cuban lawyers and judges that I met were proud that they could represent their clients, or rule from the bench, without interference or repercussion from the Cuban government.
A large percentage of the Cuban legal system concerns the day-to-day activity of the Cuban citizens, where crimes are committed, divorces are decreed, people are wronged. To a lesser degree, the courts are involved with commerce. That I am a tax lawyer was a bit foreign to them.
More economic, personal freedom
With the fall of the Soviet Union, the Cuban economy, always troubled, began to fall apart. Cuba saw the handwriting on the wall. Through adversity, the Cuban government has realized that it must diversify their economy and trade with the rest of the world.
Economic freedom has resulted in more personal freedom. Just recently, Cubans were allowed to own their homes (but not their land). They can now sell their cars and surplus crops at the market. Paladares, family-run restaurants, are flourishing - as is, not surprisingly, productivity. The citizens speak of no longer being a communist, but instead a socialist, country.
In conjunction with this, Cuba has been busy creating a legal system that they hope will draw international trade and investment. One theme is the right to private property (the Cuban Constitution says that the expropriation of property during the revolution was a one-time occurrence). We were told that the Cuban government offered reparations for the confiscated property after the Revolution in 1959. I found that hard to believe.
So far, Cuba has been successful in drawing international companies to partner with the Cuban state in establishing industry, similar to the Chinese model. Nonetheless, Cuba's excessive government bureaucracy continues to burden entrepreneurship with heavy regulation and government control. Some of the officials indicated frustration with this.
Given the current U.S. political climate and Florida's large number of electoral votes, don't expect trade relations to be entirely relaxed anytime soon. But I do believe we are at the beginning of that process. I further think this will provide a great trade opportunity for U.S. business, energy, and agriculture. As we have often seen, economic opportunity trumps politics.
The ISBA was fortunate to be in Cuba during this period, and we met many wonderful people. We are at the beginning of dialogue on trade and international law. Both sides realize that there are many historical and political reasons for the falling out between our two countries. We realize that we never had animosity towards the people of either country, just the economic and political systems.
I cannot stop thinking about the parting words of one of our dignitaries when he said to us, "We are neighbors. It should always have been that way."