by José Manuel de la Rosa Pérez *
I wanted to write for the Bulletin and its importance for education and advisory work for the Cuban population and dissent in particular.
The topic was recommended to me by Mr. René Gómez Manzano, leader of the current Agramontista (independent attorneys Cuba) after reading the motion and the letter of extension that a small group of Cubans will go to Mr. Ricardo Alarcón de Quesada , President of the National Assembly of People's Power (ANPP) in 2005, which to date have not received any response, however, already had in my mind since that year (ie 2005) to do some writing for this body , but the two years in prison Gómez Manzano, the failure to publish the Bulletin at the time and the deterioration of the disk where I had recorded the first part of my job prevented me so far. Today I will talk about the generalities in which founded our criteria or reasons for requesting the repeal of the ANPP mented by Act No. 88 as unconstitutional, at a time, I wish clarified my views on this matter, after the threat of applying that law activist René Montes de Oca Martija.
First let's clarify the background to this initiative. May 2005 was taking effect in Havana the Assembly to Promote Civil Society, that such success had by that date. Before, ie from March, the president of the Cuban People's Party (Orthodox), Heriberto Portales Rodríguez, had asked me by phone to develop a project to combat the Global Gag Rule, as it was known that monster Communist. The project was conducted in two parts: the May 27, 2005 was presented to the ANPP the motion, and the November 15, 2005, the supplementary to it. We also formulate a couple of complaints about late payment of the President of the Cuban parliament, which were addressed to the Minister of Justice and the Attorney General's Office, respectively. It is worth saying that we have never received a response.
Initially, the motion was based on four cardinal principles that demonstrated the incompetence of the deputies with regard to this Act Later, with further submissions, clarify and more abound in this area. The elements on which declare the unconstitutionality of this Act were and still are the following:
· Misrepresentation of the principle of visibility;
· Incompetence of the National Assembly People to pass a law with special character
· Misrepresentation of the principle of opportunity (procedural) and analogy as
• The essence of this Act
later added a fifth element, namely:
• The inhumanity of this Let us explain
Law
roughly what they are the first two of these elements that allowed us to define the Law No. 88 as unconstitutional.
Misrepresentation of the principle of visibility
first thing we ask is: What is the reputation thing? This is just what is public knowledge. Where is the misrepresentation? If we While the thread of the story, we see that the only person in Cuba for more than five years talking about the Helms-Burton was Dr. Ricardo Alarcon de Quesada, president of the Popular Power National Assembly. Apparently, everyone was informed of the Helms-Burton Act, but no one has seen, not even prosecutors and judges who applied the Law No. 88 in the spring of 2003, and this is very important, since this body law refers specifically to the Helms-Burton Act, the "block" and "economic war."
Cuban law does not clarify what is meant by "blocking" and really can not clarify it, because it does not exist as such: trade with the United States has broken the barrier of one million dollars, that regardless of the support of the American people, who are more than 270 million dollars. On the other hand, the law could not clarify what it was the "economic war", since the sale of large, medium and small businesses is a legal business practice of free nations. All this was undermined by Mr. Alarcón de Quesada.
What's more, in legal theory, and within the criminal law in particular, there are a series of rules which by their nature are known as white criminal laws. Such rules refer others to complete the legal mandate. And Law No. 88 always refers to the Helms-Burton Act, a statutory body, I repeat no one has seen, therefore, the Cuban government should have published that foreign law for fair and thorough knowledge of Cuban society . Despite (and I will not tire of repeating) that the Cuban government has the human and material resources to implement the act of publication of the American law, it did not. Cuban courts tried under a law unknown, prosecutors convictions adapted their applications to a law they never saw and still today do not know. Size crime has not yet been repaired. Who can tell me not to misrepresent the condition of visibility? I remember that, in the mid 90's last century, the newspaper Granma published in integrum the Cuban Adjustment Act. All this shows that the Cuban government's interest that Cuba's people know the truth.
Incompetence of the National Assembly to pass a special law
In one of the articles of Law No. 88 we read that she is special with respect to any other preceding it. Anyone who does not know the first law intended to accept the validity and legality of the Act No. 88, but someone who is versed in the subject, say no. Under the Constitution, the National Assembly of People's Power has the authority to approve, amend or repeal such laws will be presented to its members, but we will see the same article 75, subsection or specific), we clarified that the ANPP must submit to the people in a law that, their characteristics and demands. This was violated, and I will demonstrate.
First, the Act itself No. 88 in one of its by how many, says she is the daughter of the "Law of Reaffirmation of Cuban Dignity and Sovereignty. The latter was approved by the people of Cuba, in response to the Helms-Burton. If so, why is labeled with the number 88 does not traveled the same path?
Second, lack legal objectivity. Law No. 88 has the name Protection Act of National Independence and Economy of Cuba, and all articles contain facts which may have nothing to do with national independence and still less with the Cuban economy, so its wording, as we said on that occasion turned out to be mediocre and lends itself to interpretations malicious.
Thirdly, Article 53 of the current Constitution addresses the right of citizens to freedom of expression and the right to information. The last paragraph of this article reads: "The law regulates the exercise of these freedoms." Now a wonders and asks Mr. Ricardo Alarcón de Quesada: What is Law? Where is it written? Immediately understand that this law does not exist, and is that different offenses of the Law No. 88 have a direct relationship with Articles 53 and 75 of the Constitution, so it was appropriate that this Assembly will be held on referendum that provision provides. This was violated.
Theoretically, the explanation is as follows: Dr. Julio Fernandez Bulte, professor at the University of Havana, in his Theory of Law, referring to the English researcher AHL Hart, said that in the modern world, and the Law as such, there are three main types of legal rules, which are exchange for the award and legitimacy. Following the trail, we can say that the rules of change in Cuba are contained in the Regulations of the ANPP, in the chapter regulating the law establishing rules for the award are those that appear in Article 75 of the Constitution and indeed where it appears the division is in the rules of standing. This article 75, subparagraph b), legitimate acts of creation, modification and / or revocation of any general policy emanating from both the National Assembly itself and the agencies of the central state administration; but then, subsection u) legitimizes the populus, that is, the people, for this approved through a referendum as they see fit. This means that the power of representation that the elective system Cuba legalized, it limits the powers of the tribune that the deputies are vested. For others, the specialty is vested with this Act is inconsistent with the Constitution of 1976, but not with the 1940 Constitution, where Congress had broad authority, unless the applicant has not made use of the principle of ultra- Law, no reason whatsoever for the ANPP has acted the way he acted. Consider the contradiction
Law No. 88 with the current Constitution. Article 121 of the Constitution of 1976-92, governs the exercise of freedom of the people's courts function, giving the judges called ius decidendi or right decision, the procedural law governing the exercise of free will. The provision that judges in Cuba does not owe obedience to the law is a farce. I mean, Dr. Renén Pírez Quirós, also a professor at the University of Havana and a PhD in criminal justice, said in his masterpiece (General Criminal Law Handbook, Volume II) that the product is beginning to be to give the apparent conflict of legal norms; argues that the special rule contains compared to the ordinary rule, a quality that will stand out, that will differ with respect to the hypothetical fact contained in it, abounds that this quality product, the Court is obliged to punish according to what is decided in this law or rule of law, and therefore this Court can not, from any point of view, get to decide on the severity of the punishment. And so, for something special this Act would have been approved by the people, but the Act No. 88 was not approved by the Cuban people, but by a higher body of power, although it is authorized to this legal act is limited, I repeat, by the Constitution certain general legal acts. Sumémosle all this other situation that is of paramount importance to the right and the Cuban model in particular. From the time a law legalizing special character, the Cuban State is obliged to institute a special tribunal or a special room where they aired these legal acts. It is worth saying that in those courts or special chambers have no room for participation or so-called popular or lay judges, given that, as its name implies, the room is special tribunal. If that mandate is not contained in the special law (voted and approved in a referendum, I repeat, by the Cuban people), remains unconstitutional the legal act of the Popular Power National Assembly.
And to finish this first part: when the 4 and 5 April 2003 the court defied the request of the prosecution in the sense that they impose on the accused's conviction of life imprisonment, we should not see it as free will or ius decidendi of the same, but this was because no such conduct was in "the clear intention of the criminal offense, in addition to the search for a particular outcome" (José Luis Toledo Santander), which is typical element in this law reigns. For those sentenced were not required to have liability, so no harm done against individuals or the state as such.
So far, some considerations of constitutional vulnerability that this law creates, and which the current Cuban authorities boast daily.
* José Manuel de la Rosa Pérez: Moens. Graduate Degree in Law at the Higher Institute Mining-Metallurgical of Moa (2003). He served as General Counsel of the Provincial Business Equipment and Workshops of Holguin and as Registrar of the property. Current member Agramontista. Adviser to the College of Teachers for Cuba. Lies in Moa, Holguín Province.
I wanted to write for the Bulletin and its importance for education and advisory work for the Cuban population and dissent in particular. The topic was recommended to me by Mr. René Gómez Manzano, leader of the current Agramontista (independent attorneys Cuba) after reading the motion and the letter of extension that a small group of Cubans will go to Mr. Ricardo Alarcón de Quesada , President of the National Assembly of People's Power (ANPP) in 2005, which to date have not received any response, however, already had in my mind since that year (ie 2005) to do some writing for this body , but the two years in prison Gómez Manzano, the failure to publish the Bulletin at the time and the deterioration of the disk where I had recorded the first part of my job prevented me so far. Today I will talk about the generalities in which founded our criteria or reasons for requesting the repeal of the ANPP mented by Act No. 88 as unconstitutional, at a time, I wish clarified my views on this matter, after the threat of applying that law activist René Montes de Oca Martija.
First let's clarify the background to this initiative. May 2005 was taking effect in Havana the Assembly to Promote Civil Society, that such success had by that date. Before, ie from March, the president of the Cuban People's Party (Orthodox), Heriberto Portales Rodríguez, had asked me by phone to develop a project to combat the Global Gag Rule, as it was known that monster Communist. The project was conducted in two parts: the May 27, 2005 was presented to the ANPP the motion, and the November 15, 2005, the supplementary to it. We also formulate a couple of complaints about late payment of the President of the Cuban parliament, which were addressed to the Minister of Justice and the Attorney General's Office, respectively. It is worth saying that we have never received a response.
Initially, the motion was based on four cardinal principles that demonstrated the incompetence of the deputies with regard to this Act Later, with further submissions, clarify and more abound in this area. The elements on which declare the unconstitutionality of this Act were and still are the following:
· Misrepresentation of the principle of visibility;
· Incompetence of the National Assembly People to pass a law with special character
· Misrepresentation of the principle of opportunity (procedural) and analogy as
• The essence of this Act
later added a fifth element, namely:
• The inhumanity of this Let us explain
Law
roughly what they are the first two of these elements that allowed us to define the Law No. 88 as unconstitutional.
Misrepresentation of the principle of visibility
first thing we ask is: What is the reputation thing? This is just what is public knowledge. Where is the misrepresentation? If we While the thread of the story, we see that the only person in Cuba for more than five years talking about the Helms-Burton was Dr. Ricardo Alarcon de Quesada, president of the Popular Power National Assembly. Apparently, everyone was informed of the Helms-Burton Act, but no one has seen, not even prosecutors and judges who applied the Law No. 88 in the spring of 2003, and this is very important, since this body law refers specifically to the Helms-Burton Act, the "block" and "economic war."
Cuban law does not clarify what is meant by "blocking" and really can not clarify it, because it does not exist as such: trade with the United States has broken the barrier of one million dollars, that regardless of the support of the American people, who are more than 270 million dollars. On the other hand, the law could not clarify what it was the "economic war", since the sale of large, medium and small businesses is a legal business practice of free nations. All this was undermined by Mr. Alarcón de Quesada.
What's more, in legal theory, and within the criminal law in particular, there are a series of rules which by their nature are known as white criminal laws. Such rules refer others to complete the legal mandate. And Law No. 88 always refers to the Helms-Burton Act, a statutory body, I repeat no one has seen, therefore, the Cuban government should have published that foreign law for fair and thorough knowledge of Cuban society . Despite (and I will not tire of repeating) that the Cuban government has the human and material resources to implement the act of publication of the American law, it did not. Cuban courts tried under a law unknown, prosecutors convictions adapted their applications to a law they never saw and still today do not know. Size crime has not yet been repaired. Who can tell me not to misrepresent the condition of visibility? I remember that, in the mid 90's last century, the newspaper Granma published in integrum the Cuban Adjustment Act. All this shows that the Cuban government's interest that Cuba's people know the truth.
Incompetence of the National Assembly to pass a special law
In one of the articles of Law No. 88 we read that she is special with respect to any other preceding it. Anyone who does not know the first law intended to accept the validity and legality of the Act No. 88, but someone who is versed in the subject, say no. Under the Constitution, the National Assembly of People's Power has the authority to approve, amend or repeal such laws will be presented to its members, but we will see the same article 75, subsection or specific), we clarified that the ANPP must submit to the people in a law that, their characteristics and demands. This was violated, and I will demonstrate.
First, the Act itself No. 88 in one of its by how many, says she is the daughter of the "Law of Reaffirmation of Cuban Dignity and Sovereignty. The latter was approved by the people of Cuba, in response to the Helms-Burton. If so, why is labeled with the number 88 does not traveled the same path?
Second, lack legal objectivity. Law No. 88 has the name Protection Act of National Independence and Economy of Cuba, and all articles contain facts which may have nothing to do with national independence and still less with the Cuban economy, so its wording, as we said on that occasion turned out to be mediocre and lends itself to interpretations malicious.
Thirdly, Article 53 of the current Constitution addresses the right of citizens to freedom of expression and the right to information. The last paragraph of this article reads: "The law regulates the exercise of these freedoms." Now a wonders and asks Mr. Ricardo Alarcón de Quesada: What is Law? Where is it written? Immediately understand that this law does not exist, and is that different offenses of the Law No. 88 have a direct relationship with Articles 53 and 75 of the Constitution, so it was appropriate that this Assembly will be held on referendum that provision provides. This was violated.
Theoretically, the explanation is as follows: Dr. Julio Fernandez Bulte, professor at the University of Havana, in his Theory of Law, referring to the English researcher AHL Hart, said that in the modern world, and the Law as such, there are three main types of legal rules, which are exchange for the award and legitimacy. Following the trail, we can say that the rules of change in Cuba are contained in the Regulations of the ANPP, in the chapter regulating the law establishing rules for the award are those that appear in Article 75 of the Constitution and indeed where it appears the division is in the rules of standing. This article 75, subparagraph b), legitimate acts of creation, modification and / or revocation of any general policy emanating from both the National Assembly itself and the agencies of the central state administration; but then, subsection u) legitimizes the populus, that is, the people, for this approved through a referendum as they see fit. This means that the power of representation that the elective system Cuba legalized, it limits the powers of the tribune that the deputies are vested. For others, the specialty is vested with this Act is inconsistent with the Constitution of 1976, but not with the 1940 Constitution, where Congress had broad authority, unless the applicant has not made use of the principle of ultra- Law, no reason whatsoever for the ANPP has acted the way he acted. Consider the contradiction
Law No. 88 with the current Constitution. Article 121 of the Constitution of 1976-92, governs the exercise of freedom of the people's courts function, giving the judges called ius decidendi or right decision, the procedural law governing the exercise of free will. The provision that judges in Cuba does not owe obedience to the law is a farce. I mean, Dr. Renén Pírez Quirós, also a professor at the University of Havana and a PhD in criminal justice, said in his masterpiece (General Criminal Law Handbook, Volume II) that the product is beginning to be to give the apparent conflict of legal norms; argues that the special rule contains compared to the ordinary rule, a quality that will stand out, that will differ with respect to the hypothetical fact contained in it, abounds that this quality product, the Court is obliged to punish according to what is decided in this law or rule of law, and therefore this Court can not, from any point of view, get to decide on the severity of the punishment. And so, for something special this Act would have been approved by the people, but the Act No. 88 was not approved by the Cuban people, but by a higher body of power, although it is authorized to this legal act is limited, I repeat, by the Constitution certain general legal acts. Sumémosle all this other situation that is of paramount importance to the right and the Cuban model in particular. From the time a law legalizing special character, the Cuban State is obliged to institute a special tribunal or a special room where they aired these legal acts. It is worth saying that in those courts or special chambers have no room for participation or so-called popular or lay judges, given that, as its name implies, the room is special tribunal. If that mandate is not contained in the special law (voted and approved in a referendum, I repeat, by the Cuban people), remains unconstitutional the legal act of the Popular Power National Assembly.
And to finish this first part: when the 4 and 5 April 2003 the court defied the request of the prosecution in the sense that they impose on the accused's conviction of life imprisonment, we should not see it as free will or ius decidendi of the same, but this was because no such conduct was in "the clear intention of the criminal offense, in addition to the search for a particular outcome" (José Luis Toledo Santander), which is typical element in this law reigns. For those sentenced were not required to have liability, so no harm done against individuals or the state as such.
So far, some considerations of constitutional vulnerability that this law creates, and which the current Cuban authorities boast daily.
* José Manuel de la Rosa Pérez: Moens. Graduate Degree in Law at the Higher Institute Mining-Metallurgical of Moa (2003). He served as General Counsel of the Provincial Business Equipment and Workshops of Holguin and as Registrar of the property. Current member Agramontista. Adviser to the College of Teachers for Cuba. Lies in Moa, Holguín Province.
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