In the context of the new events related with Cuba I would like to comment an interesting article by Larry Cata Backer about the postposition of the Cuban communist party congress. I quote some parts of his article:
“I have written before that it is possible to build the foundations of rule of law constitutionalist states within the normative framework of Marxist Leninist states. See Larry Catha Backer, The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism, Journal of Chinese and Comparative Law, Vol. 16, No. 1, 2009. In the context of the project of polity building within China, I noted that:
The basis of Chinese state-party constitutionalism requires a reconception of an understanding of constitution – to include both the document constituting the state and that constituting the Party as equivalent components that together form the national constitution as understood in the West. It is also based on a different understanding of the character of the Communist Party – not as a political party or as a private actor but as an integral part of the institutional structure of government, and more importantly, as the holder of political citizenship. These insights produce substantial consequences for the ways in which Chinese constitutionalism are understood and evaluated under global constitutionalist standards, which are discussed in the last section of the paper. These include the reflection of the party-state construct (1) in a division of the character of citizenship between economic and social citizenship, claimed by all persons, and political citizenship, which can be exercised through the Party, (2) in an understanding of political organization in which the state power and its institutions are subordinate to political authority, (3) in an institutionalization of political authority within a collective that serves as the source and conduit of constitutional values to be applied by the holders of state authority, and (4) in a system in which Party elaboration of rule of law values is contingent on state and party self discipline. Chinese constitutionalism, understood as state and party constitutionalism can, together, serve as a basis for understanding the way in which rule of law governance is legitimately possible where the disciplinary focus of constitutional duty is focused, not primarily on the state apparatus, but instead centers on the Party apparatus. Rule of law constitutionalism in China, then, is better understood as state-party constitutionalism, with a necessary focus on party rather than state, grounded in separation of powers principles in which the administrative function is vested in the state and political authority over all is vested in the Party under law. But thus constructed, even state-party systems can claim a certain legitimacy as a constitutionalist system – though one whose substantive values are inconsistent with those of secular transnationalist constitutionalist states. This is constitutionalism with Chinese characteristics.
Id. The great vehicle of this scientific development of a polity from out of a Party structure is both an institutionalized Party structure and a willingness to move to institutional values. that increasingly are open to individuals willing to support the basis of political organization in the state. Backer, Party as Polity, supra.”
As Hu Jinato noted, under the constitutional system, the CCP must:
“Improve the mechanism of restraint and oversight and ensure that power entrusted by the people is always exercised in their interests. Power must be exercised in the sunshine to ensure that it is exercised correctly. We must have institutions to govern power, work and personnel, and establish a sound structure of power and a mechanism for its operation in which decision-making, enforcement and oversight powers check each other and function in coordination. We will improve organic laws and rules of procedure to ensure that state organs exercise their powers and perform their functions and responsibilities within their statutory jurisdiction and in accordance with legal procedures. We will improve the open administrative system in various areas and increase transparency in government work, thus enhancing the people’s trust in the government. Hu Jintao, Hold High the Great Banner of Socialism with Chinese Characteristics and Strive for New Victories in Building a Moderately Prosperous Society in all Respects, Report to the Seventeenth National Congress of the Communist Party of China on Oct. 15, 2007, at Part VI, 6).”
“But that requires a move toward an institutionalization and bureaucratization of the Cuban Communist Party. That, in turn, requires the elaboration of an institutional framework for Party organization in which governance principles, like American constitutional principles, can be developed and applied uniformly to Party, state and cadres. While the Chinese model might not transpose easily to Cuba, the forms of that model might ensure the construction of an institutional framework that would permit the development of a rule based system. A key element of that development in China has been the work of the Party Congresses, especially from the time of the leadership of Deng Xiao Ping. Whatever its flaws from an American perspective, the system has been important in the institutionalization of organizational structures and governance principles that have bureaucratized and diffused power within the Chinese system. The broader and more inclusive the Party Congress, the more likely the possibility of building a more broadly based institutional structure for the exercise of political power among a larger number of people committed to the preservation of that system. And, of course, the broader that participation, within the Party apparatus, the greater the ambit of political participation among the people.”
“It is possible that the leadership is unprepared for the deployment of this exercise of democratic centralism in the lead up to the Party Congress. But postponement could suggest a lack of maturity in the institutions of the Party. It could also suggest a need to pay greater attention to the mechanics for dealing with changes in the leadership. In a state seeking stability at a delicate moment, even the symbolism of a postponement might be regrettable. And indeed, from outside the Island, the postponement reinforces the sense that the current governance framework is fragile. The recent removal of Felipe Perez Roque and Carlos Lage suggests the fundamental nature of that fragility.”
“Perhaps the most prominent of those ousted, Foreign Minister Felipe Perez Roque, was the youngest of Cuba’s top leaders and had been widely mentioned as a possible future president. Perez Roque, 43, was replaced by his own deputy, Bruno Rodriguez. Vice President Carlos Lage, 57, apparently kept his job as vice president of the ruling Council of State, but was replaced as Cabinet Secretary by Gen. Jose Amado Ricardo Guerra, who had been a top official in the military that Raul Castro ran for decades. Lage was credited with helping save Cuba’s economy by designing modest economic reforms after the Soviet Union collapsed.Perez Roque was once personal secretary to Fidel Castro and a former leader of the Communist Party youth organization. He had been foreign minister for almost a decade. Carlos Lage and Felipe Perez Roque replaced among other changes in Cuban government, Cuba News Headlines, March 22, 2009.”
“Postponement after a shake up of this magnitude might suggest, especially abroad, an inability to control or disciplinary issues extending down to the Party rank and file. Indeed, it appears that Party officials at the highest levels have been very sensitive about the removals.”
“An official video that presents the reasons for the ouster of Vice President Carlos Lage and Foreign Minister Felipe Pérez Roque has been shown for the past several weeks to selected groups of Cuba’s ruling elite, according to information received by El Nuevo Herald from Havana. . . .The video is shown in two versions: one lasting almost three hours, the other, seven. Both contain compromising images and statements made by Lage and Pérez Roque about retired leader Fidel Castro, current President Raúl Castro and First Vice President José Ramón Machado Ventura, according to those familiar with the footage. Both versions show conversations between Lage and Pérez Roque in which they make jokes about Fidel Castro’s infirmities and his years in power, and question Raúl Castro’s ability to govern the country.” Video shows why two top Cuban officials were ousted,The Miami Herald, May 23, 2009.
“But it also adds fuel to the increasingly vocal sentiment among opponents of the current government that it is moving not towards Chinese style Marxist Leninist rule of law Party-State, but to a conventional model of military dictatorship with socialist rhetoric, a sort of perverted Peronis.”
“More importantly, perhaps, lingering dissatisfaction, hinted at by Lage and Perez Roque, might also be found among Party faithful. That dissatisfaction might have exploded into the open at a Party Congress. Party Militants, it seems, have the right to “Demandar en todo momento la aplicación de la política del partido y el cumplimiento de lo establecido en estos estatutos y los reglamentos, así como de los acuerdos del partido.” Estatutos del PCC, at art. 8 (“Demand at any time the implementation of the policy of the party and compliance with the CCP rules and regulations, as well as the agreements of the party). Yet, if one cannot trust one’s cadres, the bearers of political rights within a Marxist Leninist state, then one runs the risk of moving away from a rules and group based system, however limited the extent of political rights, to one which is seen as increasingly individual rather than group centered. And even if the reasons for the postponement was to sort through the difficulties of the current economic crisis and its effects in Cuba, the postponement itself serves to suggest that the situation is graver within the Island than has been reported. That might make potential economic partners more jittery. The next few months will suggest the way in which the Party leadership in Cuba intends to fashion the Party-State institutional framework for the future. They might do better to reconsider the Stalinist model that the postponement suggests.”
Taken from Law at the End of the Day
Postponing the Cuban Communist Party Congress
Larry Cata Backer