The co-founder of the Cuban Constitutional Movement (C40), Eduardo Garaicoa, stated in an interview with Tania Costa the central legal argument for why he believes it is essential to implement the Cuban Constitution of 1940 instead of drafting a new Magna Carta: without this step, those responsible for more than seven decades of crimes could not be judged.
The reasoning is based on a fundamental principle of criminal law: laws do not have retroactive effect.
"If you do not restore the Constitution of '40 and create a new constitution, the laws will not have retroactive effect. This means that with the new law you are going to create, those people you want to judge have not yet committed any offenses," Garaicoa warned.
The proposed solution is based on a precise legal thesis: the 1940 Constitution was never legally repealed, it was only suspended by force, which means it technically remains in effect.
"In this case, the Constitution of '40 is currently in force. The only thing that needs to be done is to put it into use," the expert stated.
Garaicoa even questions the term "restituir," which is commonly used to refer to this process. "When we say restitute, we are misusing the word. What needs to be done is to put the constitution into use, to start utilizing it," he clarified, emphasizing that to restitute would imply acknowledging that the Constitution had been repealed, when in his view, it never was.
Within that framework, all crimes committed since 1959 could be prosecuted under the laws already established in that constitution: the Social Defense Code, the Criminal Code, and military regulations applicable to those who held military positions.
"All the crimes that have been committed can all be judged according to the Constitution of '40. All the crimes or all the historical issues of that so-called historical justice," affirmed Garaicoa.
The expert broadened the scope of that historical justice to include victims from different eras and regimes.
"Children that Batista himself killed, children that the Castros themselves have killed, all those ad hoc executions that didn't even have dignified or credible sentences... all of that needs to be properly addressed," he stated.
Regarding the victims, Garaicoa was emphatic: "The victims are due at least the respect of being historically compensated and placed in the position they deserve."
The debate over the 1940 Constitution has intensified among the Cuban diaspora in 2026. In June, figures such as Armando Valladares and Julio Shiling publicly defended its restoration as the legal foundation for a democratic transition, while Carlos Saladrigas opposed it and advocated for drafting a new text.
The lawyer Reimel Ariosa argued in July that the restitution of the C40 would imply the automatic release of political prisoners in the criminal aspect, although with individual case-by-case review.
The C40 Movement, formally founded on February 9, 2019 by Widney Lores, Humberto Mondejar, and Garaicoa himself, emerged precisely in response to the new Castroist constitution approved that same year. Its promoters assert that, to repeal the Constitution of '40, one would have to replicate what Batista did in 1952: a coup d'état, which nullifies any subsequent Constitution.
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