Friday, February 4, 2022

Rafael Hernandez: The Family Code Referendum


New Year's postcard 2022.

by Rafael Hernandez

Why, among all the possible legislation, is it precisely that of the new Family Code that is going to be submitted to citizen consultation?, asked me a visiting friend, who always carries a saddlebag of questions about the human and the divine.

Our conversation took place in a restaurant of those that I go to only when I am invited. But since "there is no free lunch," as they say in the North, one is prepared, in return, to take care of the country's most complex problems, while chewing a burning tail. I don't know about you, but even teaching classes puts me in tension, so eating and even drinking water while I give a rant deconcentrates me. I end up not paying attention to what I'm eating, or letting it cool down.

The simplest thing would have been to answer my friend that this Code addresses aspects of people's lives in the sensitive realm of the private, and that is why it literally concerns everyone, whether they like it or not. I could have told you that the question of "equal marriage," as you are called here, had been the most discussed topic in the consultation of the new Constitution, above others as transcendent for the political and economic order, as the fundamental changes around the ownership of means of production; or the one that puts forward the freedom of demonstration, association and assembly, becoming number one of the political hit parade  in 2021.

On the other hand, it occurred to me to tell him that the consultation was the most normal, because in this country numerous legislations and policies had been subject to consultation since the 70s. For example? , he told me. That's when I negotiated a chance to finish my tail, with the commitment to send him my comments in a New Year's message, about this and other inquisitions of his.

Among the legislative consultations for more than half a century, the first of greater scope was that of the draft Constitution of 1976. More than 6 million citizens participated in those assemblies, who proposed almost 13,000 modifications, and some 2,300 content additions. In the referendum to approve it, 98% of the voters participated. Despite the overwhelming YES vote, the votes against, blank, annulled and abstentions were almost a quarter of a million.

I put these numbers just to compare with 2019, and its circumstance. I do not recall that 43 years earlier it was reasoned that voided, blank votes and abstentions amounted to a NO, as some commentators claimed on the approval of the 2019 Constitution; nor that in the reading of the votes for the YES it was speculated then about how much of the Constitution of 1976 was really shared by the five million who approved it.

Of course, in 2019 the votes for the YES fell considerably, not with respect to what is considered an overwhelming vote in other countries, but to "ourselves" 43 years earlier. Starting because that "ourselves" does not refer to the same group of people or to the same Cuban society that was, naturally, However, even with all these caveats, the vote on this last Constitution, consulted and submitted to a referendum, demonstrated a very high participation of voters and approval, according to the standards in force in the rest of the world. That almost 87% is an unusual figure in any vote.

Since then, the draft legislation put to consultation has been numerous. A Cuban jurist with recognized authority in labor law, Raudilo Martín, told me some recently. Among these, Law 24 on Social Security, discussed in 1979 in all workplaces, and which would enter into force in 1980; as well as the Labour Code (1984); and Law 105 on Social Security (2008). The new Labor Code (Law No.116), three decades later, in 2014, would be discussed in the workplaces, before being debated and approved (by majority) in the National Assembly.

For Raudilio, who was an advisor to the CTC for a long time, the experience of the workers' parliaments, in 1994, led to a moment of prominence for the unions, which brought to the fore their role in a socialist democracy, not limited to an established institutional order, nor to reform programs formulated in a technocratic style.

As is known, the reform policy known as "Updating the Model," and its guiding document, the Economic and Social Guidelines,  were debated and amended through a very broad consultation process, before being submitted for approval at the Sixth Party Congress (2011). This consultation, and especially that of the Constitution, in 2018, were not mere ceremonies, as they gave rise to well-known modifications, which I have commented on at other times. 

I find no contradiction between this practice and the idea that rights should be recognized and assumed in any circumstance, nor in affirming that social justice is not a mere synonym for what a majority thinks. In fact, I also do not remember that in the face of the consultations mentioned above, the most prestigious jurists, including university professors, judged them as restricted or formal practices, nor confused them with plebiscites, but rather identified themselves with their political sense as a democratic, that is, participatory exercise.

Indeed, all the above examples point to participation as an essential condition of a system that defines itself as democratic, not just the arithmetic of votes. Consultation, guaranteed as an unrestricted act of freedom of expression and debate of ideas, is not inferior to the act of voting, whether it be elections, plebiscites, referendums. Encrypting in direct and secret suffrage the key to the democraticity of a political system is like confusing the meaning of the family as a citizen matrix with the act of marriage of a couple, whether heterosexual or LGBT.

From a qualitative view of democracy, in terms of participation and protection of the rights of all citizens, the concepts of majority and minority are neither opposed nor exclusive. Well seen, social justice is not the rule of an arithmetic majority, but that which preserves and vindicates the sum of disadvantaged minorities. The social sense of that justice, of course, is not only measured by opening the space to make possible the reparation of the subaltern groups from themselves, but to emancipate the dominators from their habits of command.

In this complex process, neither the State nor the laws are but facilitators, which contribute (or not) to erect barriers, through which the various social groups can pass, and to minimize the tension between particular interests. If the norms of social access, the laws and apparatuses of justice, and the ideas about political correctness were sufficient to assert the rights that guarantee the freedom and equality of citizens, in today's Cuba the asymmetries of class and social status, gender, skin color would have disappeared,   religious creed, region. That is, the spirit of laws related to social equality does not derive from their mere application, nor does it walk alone.

Without transforming social institutions and their role, i.e. workplaces and labour relations, schools and styles of education, the media and their role in the system, social organisations and their real representativeness, artistic and intellectual production as a shaper of a civic culture, community life and its own space,  the public sphere as a mirror of society as a whole, it is very difficult to renew a civic consciousness, nor a critical thinking that means anything more than the attribute of some elites. That is, change can only be generated from society itself. Well, as is known, there is no more political democracy without social democracy; nor change of mentality without transforming real social relations.

My friend may tell me that, for a New Year's postcard, this was a very long answer. And some readers may share with me privately that "the gringo's question was a means, and you answered a peseta." Both are right. But I feel that, at the heart of the debate on the Family Code, all our problems intersect. Or rather, it is a mirror where our ideas and feelings about the just, the ethical, the right, the "human," the "natural," the "private," are displayed in all their tension and heterogeneity. Where our beliefs come to the surface, including the strata of inherited cultures, religious faiths, rules of coexistence, ideological impregnations, revolts of common sense. And where all that meets frustrated ideals, ebbs of participation, heterogeneous political consensus, multiplied ideological vibrators, conservative resurgences, rise of the image of the private vs. the public. Those who confuse the state-civil society pair as a struggle between two contenders might learn that the real change in that pair refers rather to all of the above.

Some friends rate 2021 as annus horribilis,sevenpests included. Others, that Cubans are compromised by hopelessness and disbelief. Others, who live an extreme polarization, equivalent to an "ideological civil war." Others, that we are weirdos, and we must fight to regain the status of "normal country" that we once had.

However, I think we have learned a lot in these last two years, including ways to deal with pests, hopelessness and polarities. We know more about "ourselves" really, about the real ways of thinking and behaving, including the gap between the two. On the differences between an article of the Constitution and the policies with which it relates, but above all on the mediations that link them. On the problems associated with the expiration of one way of doing politics without yet emerging another; the confusion of roles between leaders, leaders and officials; and to differentiate between genuine critical thinking and the speeches of a contingent of professional detractors. 

Speaking like crazy, these days we commemorate the anniversary of the Trumpists' assault on Congress. 65% of Americans say that the country is suffering from a deep political crisis, almost half of Republicans say there was fraud in the last election, and the president has lost much of the support with which he came to the White House, less than a year into his term. Of course I am not one of those who console themselves by comparing our ills with those of others. But from time to time we could calibrate what happens to us, looking at others, if only to have a notion of the world in which we live, and learn to learn from ourselves, without villagerism, but also without self-pity.

It occurs to me that, instead of using the consultation on the Code to find discrepancies on behalf of a certain doctrine, of one or another sign, it could be used as an exercise in dialogue and learning. Let's say, that beyond the bid to legalize (or outlaw) that a couple of any sex can lead a family, it became an opportunity to debate with arguments and real dialogue, in order to advance on the path of legitimizing that recognition in the civic conscience. They are two very different things, as our own history shows, and also that of others.

In North and UK English, litmus test is a test that reveals and demonstrates, as the litmus paper does in a liquid, and indicates possible success or failure. I wish the debate on the Code could become a  litmus test of our learning by 2022.

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