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    Family Code: Constitutional principles, rights and duties at stake

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    Código de las Familias: Principios, derechos y deberes constitucionales en juego

    If Professor Olga Mesa Castillo has stated that "Family Law is the most sentimental of Rights", it could be said that the Family Code is the most social of codes.

    The family constitutes the fundamental cell of every society, to the extent that as a primary social group it must reproduce values and principles that ensure the full dignity and development of the personality of its members, as well as individual and collective well-being, in order to achieve a social coexistence as peaceful as possible. These principles and values should be consolidated and reproduced in the Cuban context, in a socialist State of law and social justice, democratic, organized with all and for the good of all.

    Sometimes, citizens question the degrees of democracy, participation and inclusion that the State achieves, but they avoid doing a similar exercise on the family space or regarding the coexistence plan that should exist, when it is a different family. The Cuban constituent, knowing the impact that the fact of tempering the diverse and complex reality existing in Cuban families, first to the Constitution and, later, to a new law that regulates them. It would have on society, decided to provide in the transitory provision eleventh of the Magna Carta that within two years of validity of the same, the process of popular consultation and referendum of the project of the Family Code, in which the form of constituting the marriage must appear.

    Why did the constituent decide to shield in a democratic way the process of elaboration of the Family Code with two institutions of popular participation such as the referendum and the popular consultation? The answer lies in the fact that it is necessary to provide the new Code with high rates of citizen legitimacy, due to the implications it has for social coexistence and for the vision of society of the new generations. Hence, the conception of a process aimed at seeking of the popular consensus, within which the popular consultation plays a determining role.

    What is the popular consultation? What purpose does it have? What is consulted? Based on what patterns is it organized? What constitutional principles, rights and duties must be taken into account to enhance its democratic nature and achieve its consensual purpose? The answer to these questions will guide the lines of this work, whose main objective is to make an approach to this peculiar participatory institution and, incidentally, call attention to some guidelines and risks, based on some constitutional principles that influence their realization.

    The popular consultation is a form or mechanism of popular participation through which a bill or political decision is submitted to a deliberative process in which the voters, gathered in assemblies previously organized in terms of form, time and space, give their considerations on the content of the draft, so that the decision-making body makes the pertinent modifications taking into account the greater or lesser intensity and importance of the proposed modifications. A citizen's right is derived from the popular consultation, specifically, a right to participate, as recognized in paragraph d of article 80 of the Constitution of the Republic; this institution is an expression of the principle of popular sovereignty of article 3 of the Constitution, and entails its exercise directly by the people.

    The popular consultation, together with the accountability of the delegates to their constituents and the revocation of the mandate, characterize the Cuban participatory model. It is a participation mechanism that already has a tradition in our country and its first implementation is precisely associated with the Family Code, in force since 1975. Later it was used for the first socialist constitution, approved by referendum in 1976 and, more recently, in the Guidelines of the Economic and Social Policy of the Party and the Revolution, the Labor Code and the current Constitution. It is not a very widespread form of participation in other countries, that is, it is not usually recognized in the Constitution or in the laws, nor is it put into practice in the framework of legislative activity, without this meaning that the deliberative dimension of a participatory model is exhausted with this single mechanism.

    In Cuba, popular consultation can be established by law –as was the case with the eleventh transitory provision of the current Constitution– or, opportunely, it can be requested by the National Assembly based on the power conferred by the Constitution itself (art. 108- c) and the Law on the Organization and Functioning of the National Assembly of People's Power and the Council of State (arts. 215-271). Due to the legislative function of the Cuban Parliament, it must discuss and approve the laws, for which it can rely on the citizenry in such a way that they are involved in the deliberative phase, which is one of the fundamental phases of the law-making process. Generally, this phase is carried out by the deputies with the analysis of the bills within the commissions and in plenary, of which some fragments are televised. The popular referendum allows the National Assembly to “calibrate” the citizen's “feeling” about certain contents of the preliminary draft that may result in conflict or, a priori, lack clear majority agreements, which is why it allows the construction of consensus. On the other hand, it involves the citizens in the legislative process and raises their legal culture with respect to the future law, even more so, if the citizens themselves will be the recipient of its regulations, in the event that it is approved; another benefit is that it enhances the dialogical and consensual dimension, so necessary in any society.

    At the same time that the popular consultation and the referendum are integrated into the formative process of the law, they maximize the democratization of this process and enhance the legitimacy of the result. When for the final approval of a law, in addition to the traditional discussion and voting that takes place in Parliament, it is submitted to popular consultation and a referendum, as happened with the current Constitution and will happen with the Family Code, then it can be affirmed that The three dimensions that a participatory model must have have been specified: the deliberative one through popular consultation, the representative one through the deployment of parliamentary activity on the bill, and the direct-democratic one through the referendum.

    Each one of these dimensions means in itself a configurative principle not only of the model, but also within the institutions that comprise it. It is just as important that the popular referendum be provided for in regulations as that it be designed and carried out as democratically as possible, in the sense that it ensures free deliberation, representation of interests, direct and conscious involvement of the participants and a final result faithful to the consensus obtained, which is a different matter from the quantification of majorities regarding the law in general and each of its contents separately.

    In the 2019 Constitution, some principles are recognized that should guide the form of organization and conduct of the popular consultation in Cuba. These have been reaffirmed in other consultative processes, such as the draft of the current Magna Carta, which proved to be more democratic and transparent, compared to the previous ones, perhaps because significant experience has already been accumulated in the implementation of this institution. What constitutional principles, rights and duties must the organizational bodies and the subjects involved in the referendum take into account in order to ensure the democratic character that this institution must have and thereby tend to obtain better results in the face of consensus?

    In the first order, the democratic principle itself (art. 1), which is also based on other fundamental principles and values that are essential for it to be carried out, such as human dignity (arts. 1 and 40), the ethics of citizens (art. 1), freedom (arts. 1 and 46), equality (arts. 1 and 42) and its logical complement, non-discrimination (arts. 41 and 42), and solidarity (art. 1 and 47). Other principles that are functional to safeguard the democratic nature of this mechanism are the principles of transparency, participation (art. 80), protection of people with disabilities (art. 89), free development of the personality (art. 47) . Among all these principles there is a relationship of interdependence, one pays tribute to the other, or in the same order, the denial of one can negatively affect others.

    Two duties of constitutional rank also pay tribute to the democratic realization of the popular consultation in Cuba, one of them is regulated in Chapter IV of the Magna Carta, I mean that people must relate to others, in accordance with the principle of solidarity respect and observance of the rules of social coexistence. Another duty is derived from article 47, from this precept, in addition to anticipating respect and solidarity, the duty to be fraternal is normatively required.

    The principle of co-responsibility is not regulated in the Constitution, but it can be inferred: the Family Code will be the result of the conscious and responsible involvement of citizens with their participation in the consultation and referendum processes and the rigorous work of the Electoral Council Nacional and the other instances involved, to capture the importance and essence of the disagreements and consensus that fall on the regulation of family institutions, also of the work of our deputies in the National Assembly. Only in this way, a final project can be presented to a referendum that makes its approval viable, due to the achievement of a majority consensus, capable of expressing itself in a notable majority quantifiable in votes.

    One cannot speak of a democratic popular consultation if certain rights and freedoms are not guaranteed, such as the right to participation, also considered a principle, or the freedoms of thought, conscience and expression of article 54 of the Constitution, including conscientious objection, demonstrations of the already mentioned principle of freedom of article 1.

    It is clear that the exercise of rights has limits (art. 45), but not as simple as it has been made to be understood with the idea that "one's right ends when that of others begins", since it is not about reasons only of a quantitative order, otherwise weighting (weighing the rights that are potentially "at stake" in a given legal situation) and proportionality (assessing the legal-social significance of a right compared to another or others equally valid for the legal situation that is known in order to find the fairest solution) were not two of the most complex intellectual activities that the judge must undertake not infrequently, in the search for the fairest solution. Also, because this simplified interpretation of the limits to rights can become a boomerang for those who have an expectation that certain rights be recognized within the Code, in order to reaffirm dignity, equality and take another step forward towards social inclusion with marked roots in Martí.

    Other constitutional principles have to do with the organization of the consultation, responsibility of the National Electoral Council. This body, by mandate of the Law of Laws, must guarantee that this process of democratic participation takes place under the axiological guidelines of reliability, transparency, speed, publicity, authenticity and impartiality (art. 211). Each of these principles has its own content and all point to democratic quality, that is, to the objectivity of the result. There are other principles that are not of constitutional rank, they belong to the technique of business organization, but can be extrapolated and transcended. Some of these may be communication, responsibility, coordination and efficiency, they are more internal to the consultation process, that is, to the organization of the assemblies. The recognition of democratic institutions is not enough, it is also important that these have democratic quality in their normative conception (regulation) and in their realization.

    In achieving the organizational principles, the National Electoral Council plays a vital role, through the thousands of people including electoral authorities and agents, supervisors and collaborators that it has deployed to assume the more than seventy-five thousand planned assemblies, called points of meetings. Likewise, the media have a leading role, since due to the organizational form of the referendum and the way in which the participant's manifestation takes place; it is very difficult for the latter to have a real idea of the positions of the rest of the participant regarding a certain topic or content. Only acting with impartiality, transparency and publicity will be able to produce reliability and authenticity, because as it was said, between the principles there is a relationship of interdependence.

    Certain bad practices and behaviors of the organizational instances and of the people involved may undermine the democratic quality of the popular consultation process of the Family Code project. One and the other can deal blows to the democratic and consensual essence of this mechanism, as well as to its functionality. Let us relate some without intending to exhaust them:

    The political apathy of citizens, to demobilization or formal participation, that is, without a conscious and active involvement in what is being deliberated, from its social meaning;

    Intolerant attitudes and reactions harmful to human dignity when defending ideas that are not shared or contrary to the current normative order;

    The holding of consultations in inadequate spaces or directed by unprepared or indifferent people, which impact the deliberative moment, making it tedious and unprofitable;

    The invisibility or malicious placement, by the media, of the criteria or opinions against certain regulations of the draft, to give a notion of false consensus.

    The little culture of debate or consensus that can manifest itself when someone tries to impose a criterion or simply disqualify the deliberation of the assembly in its entirety because the opinion they have or defend has not prevailed;

    The excessive pretensions that each of the precepts be analyzed, without opportunely foreseeing an order or a dynamic that prioritizes those that regulate the most socially transcendental institutions;

    Misunderstanding or insensitivity regarding the necessary participation of people in vulnerable situations, so that they can express their opinion;

    Intolerance towards possible manifestation of conscientious objection on certain aspects (in the framework of the consultation it could only be denied when the conscientious objection prevents another from exercising their right);

    The mistaken belief that in the draft Family Code only marriage is under debate and therefore apply a punishment vote to the law as a whole because the idea of equal marriage proposed in the draft is not shared;

    The non-solidarity, anti-fraternal and anti-democratic manifestations based on the idea that the family that one has or aspires to is the one that everyone should follow as a pattern;

    The inadequate interpretation of the disagreements based on the opinions expressed and compiled in each of the assemblies;

    In relation to this last aspect, an important challenge that the popular consultation has is the formation of dissent by the processors of the opinions expressed in the form of modification, addition, elimination or doubts, because the consultation, unlike the referendum, is not binding, but this does not make it less transcendent, because paraphrasing Robert Dahl, with the referendum positions are counted with the consultation intensities are measured. Both are important for the final political decision.

    It is also fundamental for the participants to understand that the result of the modifications that the preliminary draft of the Code undergoes, before moving on to a new discussion and approval by Parliament and later to the referendum, will not be the simple result of the mathematical calculation of opinions and its final comparison with the total number of voters, to find out if one opinion or another is the majority. Non-majority criteria but well defended and reasoned can be as valid and transcendent for the modification of the draft as others apparently shared by many. One and the other must be in tune with the constitutional values that were previously agreed upon and endorsed. The popular consultation is a process of dialogue, reasons and arguments.

    The social coexistence plan proposed by the preliminary draft of the Family Code is so current and plural that it is difficult to think that someone cannot see more than half of their interests or expectations they have about the family and its institutions represented. The Family Code is a normative space that, like no other, allows us to look at ourselves from different perspectives: the individual, the family group and the social. As no other law contains regulations that directly or indirectly affect our reality, therefore, participating in the popular consultation to respectfully offer and defend individual criteria about how it is proposed to regulate certain institutions, the vast majority of which are perfectly verifiable from our own experience; to exchange opinions in a civilized manner with other people about the individual vision of the family, children, relatives, the role of grandparents, people with disabilities, marriage, de facto unions, motherhood, fatherhood, divorce, assisted reproduction, filiation, just to mention these, for many will be a unique opportunity, in the sense of assuming the responsibility that we all have in building a more dialogical, more tolerant and more Cuban society; and in the sense also of not only thinking about oneself, but also about the otherness where the dignity of other people and the harmony of future generations are at stake.

    If education begins at home – as we usually say – why shouldn't democracy begin in the family? The referendum must be as plural, inclusive and functional as the proposal for the Family Code, which will be submitted to the voters for decision, only in this way will we achieve a society marked by shared interests, values and principles, not in the sense that be the same for everyone, but in the sense that we all offer them the same respect.