Article 37 of the Cuban Constitution of 1940 provides the legal mechanism to outlaw the Communist Party of Cuba without the need for new legislation or retroactivity, according to Eduardo Garaicoa, co-founder of the Cuban Constitutional Movement (C40), in an interview with Tania Costa.
Garaicoa explains that this article "clearly states that the registration or existence of totalitarian parties or organizations is not allowed," meaning those that threaten popular sovereignty, democracy, or the republican form of government.
The original text of Article 37 states that "the formation and existence of political organizations contrary to the representative democratic government of the Republic, or that threaten the integrity of national sovereignty, are illegal."
For Garaicoa, the conclusion is straightforward: "By applying the Constitution of '40, it is basically possible to completely illegalize the Communist Party." He also added that those who have committed crimes against humanity can be prosecuted; the debt incurred by the communists can be declared odious, and compensation can be demanded from foreign companies that have exploited Cuban workers in collusion with the Castro regime.
The argument for the illegalization of the PCC is not based on a novel interpretation, but rather on a specific historical precedent. In 1948, during the government of Carlos Prío Socarrás, the Cuban Congress initiated a bill to exclude the Communist Party from political life, relying precisely on that article 37.
The process was delayed in the legislative procedure —“it takes a little longer here, it gets discussed a bit there,” Garaicoa recalls— until the coup d'état by Fulgencio Batista in 1952 completely interrupted it.
However, the initiative did not end there. After the 1954 elections, which Garaicoa describes as "spurious measures, like Maduro's," the project regained momentum and culminated in the creation of the Bureau for the Repression of Communist Activities (BRAC).
This historical journey is, for the co-founder of C40, proof that the Republic of Cuba itself, under the Constitution of '40, had already begun the process of illegalizing communism before the dictatorship interrupted it.
The distinction emphasized by Garaicoa is significant from a legal standpoint: the 1940 Constitution does not prohibit parties based on their ideology, but rather due to their totalitarian and antidemocratic nature, which—according to him—makes the measure solid and not arbitrary.
The C40 Movement, founded in 2018, argues that this Constitution has never been legally repealed, as the text itself does not allow for repeal, only modification, and therefore remains in force de jure. In this context, the restoration of the C40 would not be a legal breach, but rather an act of legality.
The debate has gained momentum in 2026, with figures from the exile community such as Armando Valladares and Carlos Saladrigas speaking in favor of and against the restoration of the C40 as a foundation for a potential democratic transition in Cuba.
Garaicoa concludes with a categorical statement: "The Communist Party can only be rejected, along with all its activities and everything it has done and may do in the future, through the Constitution of '40."
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