Alberto Luzárraga, a banking expert with 35 years of experience in the U.S. and Latin America and a scholar of the Cuban Constitution of 1940, explained in an interview with Tania Costa why the constitutions approved by the Castro regime did not validly repeal the 1940 charter and are, in his legal opinion, null from their inception.
The central argument of Luzárraga is compelling: no constitution imposed under a one-party system can represent the will of the Cuban people.
"There cannot be a genuine representation of the people if there is only one political party. The constitution created with a single political party and only one voting option reflects the views of that party, and it is not about the opinion of one political party but rather the opinion of the people," he stated.
The expert pointed out that the 1976 Constitution was approved, according to official figures, with 93% of the votes —actually, the regime reported 97.7%—, a figure that Luzárraga deems absurd.
"Those constitutions were ridiculously approved through a route by 93 percent of Cubans. That is obviously in the Guinness Book of Records because no one has ever approved a constitution by 93 percent," he said.
For Luzárraga, the nullity of those constitutions does not require any formal annulment process, and he illustrates this with a clear legal analogy.
"Those initial constitutions are void. But not de facto. If something is void, there is nothing to be done. If I make a sales contract with you and I am malicious and it is a fraud, the contract is void from the start. Therefore, there is no need to go through a nullity process," he explained.
Beyond the argument of legitimacy, Luzárraga also dismantles the Castroist constitutions from a technical-legal perspective.
"If you examine it with a sensible legal criteria from people who understand constitutional law, to put it in Cuban terms, it's a legal mess. They are worth nothing," he stated.
The expert detailed that these texts lack one of the fundamental pillars of the rule of law: "There is no separation of powers. There is confusion between the legislative and executive branches, between the judicial and legislative branches. If you examine it from a technical perspective, there is no way to grasp it."
The interview takes place within the context of an increasing debate among the Cuban exile community regarding the role of the 1940 Constitution in a future democratic transition.
On June 1, a forum was held at the American Museum of the Cuban Diaspora in Miami, where Luzárraga participated alongside figures such as Armando Valladares and Julio Shiling.
Valladares stated in an interview with Tania Costa that the Constitution of 1940 is the only legitimate legal framework for the transition because it "was never formally repealed."
Shiling, for his part, proposed a path of transition in three stages: a transitional government, a constituent assembly elected in free elections to review the text, and a popular referendum.
The 1940 Constitution was drafted by a Constituent Assembly consisting of 76 delegates from nine political parties, elected in free elections in November 1939. It is regarded as one of the most progressive in Latin America at the time, due to its guarantees of individual rights and the separation of powers.
The Cuban exile community has proposed returning to that text as a starting point to rebuild the country, in contrast to the regime's constitutions which, according to Luzárraga, "attack individual rights" and lack real legal validity.
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