Mixed Review of Constitutional Rights in Cuba

Northwestern Journal of Human Rights Northwestern Journal of Human Rights

5-22-2025

Mixed Review of Constitutional Rights in Cuba Mixed Review of Constitutional Rights in Cuba

Ngoc Son Bui [email protected]

Article 1

MIXED REVIEW OF CONSTITUTIONAL RIGHTS IN

CUBA

Ngoc Son Bui*

ABSTRACT—Cuba’s 2019 Constitution and the 2022 Law on the Process of Protection of Constitutional Rights create a mixed model of review. Accordingly, the legislature and the executive review the constitutionality of legislation and regulations, while the courts review the constitutionality of state actions. Synthesizing comparative constitutional law and new institutionalism in political science, this article argues that the mixed constitutional review in Cuba is shaped by different historical influences; competing socialist and liberal ideas and discourse; competing political interests; and competing socialist and universal values. The Cuba experience presents a new hope for other socialist countries like China and Vietnam where the vehement struggle for judicial review has largely failed. Judicial review is not impossible in the socialist regimes. In such regimes, political review can be retained, but judicial review of the constitutionality of state actions can be introduced without undermining legislative supremacy. Yet, Cuba’s version of mixed constitutional review is limited: courts are not allowed to review legislation and regulations. In the longer term, an expanded model of mixed constitutional review can be adopted in Cuba and other socialist states, which would integrate political review and judicial review of regulations and legislation.

INTRODUCTION. .................................................................................. 155 I. HISTORICAL BACKGROUND OF CUBA’S CONSTITUTIONAL

REVIEW. ................................................................................ 156 A. Establishment of Judicial Review .......................................... 157 B. Establishment of Political Review ......................................... 160 II. EXPLORATION: CUBA’S MIXED CONSTITUTIONAL REVIEW ........ 162 A. New Legal Framework .......................................................... 162 B. Continuity of Political Review .............................................. 164 C. Restoration of Judicial Review .............................................. 166 III. EXPLANATION: NEW INSTITUTIONALIST LOGICS ........................ 169 A. The Logics of Political Review .............................................. 169 B. The Logics of Judicial Review ............................................... 172 C. The Logics of Mixed Constitutional Review .......................... 176 IV. NORMATIVE CONSIDERATIONS ................................................... 178 A. Limited Model of Mixed Constitutional Review .................... 178 B. Expanded Model of Mixed Constitutional Review .................. 182 CONCLUSION ...................................................................................... 186

INTRODUCTION

Comparative scholarship contrasts two models of constitutional review: judicial and political.1 The judicial model allows courts to determine whether laws and state actions are consistent with the constitution. The last decades have witnessed the global judicialization of constitutional review: 83% of the world’s constitutions vest the review power to courts.2 The judicial model is divided into two sub-models: the U.S. model of decentralized review by ordinary courts and the European model of centralized review by specialist constitutional courts.3 The less common political model authorizes political institutions, such as the legislature and the executive, to control constitutionality.4 For example, in the socialist states of China and Vietnam the legislature enjoys the power to decide whether statutes and executive regulations are consistent with the Constitution.5 Drawing on Cuba’s recent experience, this article explores the third, mixed model: both political and judicial institutions are vested with the power of constitutional review in a single jurisdiction. This article has three aims: exploratory, explanatory, and normative.

First, the article seeks to explore formal features of the institutional design of mixed constitutional review in Cuba. Cuba, the only socialist country in Latin America, has recently joined the global trend toward judicial review, but at the same time retains political review. Cuba’s 2019 Constitution and the 2022 Law on the Process of Protection of Constitutional Rights together create a mixed model of constitutional review.6 Accordingly, the legislature reviews the constitutionality of the

legislation and other legal instruments that have general effect, while the courts review the constitutionality of concrete state actions. This article only focuses on the formal features of the institutional design of Cuba’s mixed constitutional review. As the system has been recently adopted, the data for the accounts of its function is limited. How the system works, particularly the new institution of judicial review, remains to be seen.

review

Second, this article aims to explain the reasons for the adoption of mixed constitutional in Cuba. Synthesizing comparative constitutional law and new institutionalism in political science, this article argues that the mixed constitutional review in Cuba is shaped by different historical influences; competing socialist and liberal ideas and discourse; competing political interests; and competing socialist and universal values. Third, drawing on the case of Cuba, this article considers the normative implications for constitutional review amongst other socialist states. The Cuba experience presents a new hope for other socialist countries like China and Vietnam where the vehement struggle for judicial review failed. Judicial review is not impossible in the socialist regimes. In such regimes, political review can be retained, but judicial review of the constitutionality of state actions can be introduced without undermining legislative supremacy. Yet, in Cuba’s version of mixed constitutional review, courts are not allowed to review legislation and regulations. In the longer term, an expanded model of mixed constitutional review can be adopted in Cuba and other socialist states, which would integrate political review and judicial review of regulations and legislation.

The structure of this article is as follows. Part I reviews the history of judicial review and political review of constitutional review in Cuba. Part II explores the formal design of the mixed constitutional review in the country. Part III explains factors of this mixed design. Part IV considers the normative implications of Cuba’s mixed constitutional review. Part V concludes.

I. HISTORICAL BACKGROUND

Before

recent mixed development, Cuba had

separate developments of judicial and legislative-executive review in different historical periods with regard to its constitutional review. Both judicial and legislative review are not isolated institutions. Rather, they are shaped by broader principles of the constitutional systems. Judicial review is shaped by the principles of liberal constitutionalism or constitutional constraints on

government power to protect liberty,7 while legislative review is connected to the principles of the socialist constitutional system. In Cuba, judicial review was established in the 1901 Constitution and then further consolidated in the 1940 Constitution.8 This historical experience provides the national base for the recent re-establishment of judicial review in the country.

A. Establishment of Judicial Review

Cuba’s 1901 Constitution, the first constitution in Cuba after its separation from Spain in 1898, “was drafted during the United States’ occupation of the island.”9 The process of constitution-making reflected the strong influence of the U.S.: “U.S. occupation authorities required the election of an assembly to draft a constitution”.10 The Constitution adopted elements found in the US Constitution, including the presidential system, separation of power, bicameralism, and the Bill of Rights.11 To ensure the separation of power and the protection of the Bill of Rights, the Constitution empowered the Supreme Court “to decide as to the constitutionality of the laws, decrees, and regulations when a question of that effect is raised by any party.”12 Thus, the Constitution formally establishes judicial review, which may be inspired by the US model of judicial review informally developed through constitutional interpretation in the Marbury v. Madison case in 1803.13

In 1940, the Constitutional Convention ratified a new Cuban Constitution.14 Among other things, the 1940 Constitution established a detailed system of judicial constitutional review.15 The system includes structural, functional, and procedural, effective aspects. To further illustrate the purpose of these aspects of the judicial constitutional review, their details are described as follows.

Structure: The Supreme Court was divided into several tribunals,

including the Tribunal of Constitutional and Social Guarantees.16

Function: the Supreme Court was empowered “[t]o decide on the constitutionality of laws, decree-laws, decrees, regulations, resolutions, orders, provisions, and other acts of any body, authority or officer.”17 Thus, the Constitution allows for judicial review of legal instruments with general effects and concrete state actions. The legal instruments subject to judicial review include: (1) statutes, such as laws and decree-laws, enacted by the legislature and other legal instruments, and (2) regulations and orders, issued by the executive.

The Tribunal of Constitutional and Social Guarantees is in charge of: the recourses of unconstitutionality against the Laws, Decree-Laws, Decrees, resolutions, or acts that deny, diminish, restrict or corrupt the rights and guarantees provided in this Constitution, or that impede the free functioning of the organs of the State.18 Additionally, the Tribunal oversees the consultations of Judges and Tribunals concerning the constitutionality of the Laws, Decree-Laws, and other provisions that they have to apply during trial, the recourses of habeas corpus by way of appeal or when the reclamation before other authorities or tribunals has been ineffective.19 Other matters the Tribunal is responsible for include: the validity of the constitutional procedure and reform, the juridical-political questions and those concerning social legislation that the Constitution and the Law subject to its consideration, and the recourses against abuses of power.20

The Constitution allows a broad range of individuals and groups to apply to the Tribunal of Constitutional and Social Guarantees including the President of the Republic, the Prime Minister, and each one of the members of the Council of Government, of the Senate, of the Chamber of Representatives and of the Tribunal of Accounts, the Governors, Mayors, and Councilmen.21 The Judges and Tribunals, the Prosecutorial Ministry, and universities also fall under the list of individuals and groups recognized under the Constitution as eligible to apply.22 Additionally, this also includes the autonomous organizations authorized by the Constitution or the Law.23

Every individual or collective person who has been affected by an act or provision that the affected person considers unconstitutional is also eligible for application.24 The persons not comprehended in any of the previous paragraphs can also come to the Tribunal of Constitutional and Social Guarantees, as long as they provide the bond that the Law specifies.25

Procedure: The Constitution establishes rules for procedures of judicial review. The declaration of unconstitutionality can be requested by the interested persons in legal cases before the courts; any group of twentyfive citizens; and by “the persons to whom the provision that is deemed unconstitutional affects.”26 The Constitution requires the Judges and Tribunals “to resolve the conflicts between the Laws in force and the Constitution, conforming to the principle that the latter always prevails over the former.”27 If the Judges and Tribunals find the law or other legal instruments unconstitutional, they must suspend the procedure and refer the matter to the Tribunal of Constitutional and Social Guarantees for it to affirm or deny the constitutionality. 28

Effect: The decisions by the Tribunal of Constitutional and Social Guarantees will have an erga omnes effect.29 The Constitution provides that:

This provision indicates that the 1940 Constitution adopted a strong version of judicial review. Courts were empowered to strike down unconstitutional legislation and government regulations. The courts’ constitutional decisions were final and binding to other branches of the

state. The provisions on judicial review in the 1940 Constitution retains contemporary relevance as the Constitution was made by a constituent assembly and involved a participatory process.31 The 1940 Constitution “is in many ways an emblem of Cuban nationalism which retains continuing respect.”32 Due to the continued relevance and respect, as indicated later, the recent establishment of judicial review in China involved the reference to the 1940 Constitution.

B. Establishment of Political Review

After the Cuban Revolution (1952-1959) which overthrew Fulgencio Batista’s government and established a government led by Fidel Castro, Cuba enacted the socialist Constitution in 1976.33 Following the Soviet constitutional model, the Constitution abolished judicial review and established political review of constitutionality.34 The national legislature, called the National Assembly of the People’s Power, is defined as “the supreme organ of the power of the State.”35 This institution is vested with the power to decide on the constitutionality of the laws, decree-laws, decrees, and other general provisions.36 Under the 1976 Constitution, courts are “subordinate, hierarchically, to the National Assembly of the People’s Power and the Council of State.”37 Therefore, courts are not allowed to review the constitutionality of the actions of these political institutions. The abolition of judicial review and establishment of legislative review of constitutionality are shaped by the socialist principles of party vanguardism, legality, democratic centralism, and statist rights confirmed in the 1976 Constitution.

First, the 1976 Constitution confirms the vanguard leadership of the Communist Party of Cuba: “The Communist Party of Cuba, the organized Marxist-Leninist vanguard of the working class, is the superior leading force of the society and of the State, which organizes and orients the common efforts toward the high objectives of the construction of socialism and the progress toward the communist society.”38 As the Party is the

leading force of the state, state law is the institutional embodiment of party policy. Therefore, judicial review of state law would challenge party policy. And thus, judicial review was abolished because it is inconsistent with party vanguard leadership.

Second, the 1976 Constitution establishes the principle of socialist legality: “All the organs of the State, their leaders, functionaries, and employees, act within the limits of their respective competences and are under the obligation to strictly observe the socialist legality and to see to the respect for it in the life of the entire society.”39 Socialist legality requires that citizens strictly obey the law for the reason that the law is the expression of interests and will of the working class. This principle precludes citizens’ challenge of the law including through the process of judicial review. Judicial review was abolished because it is inconsistent with the requirements of socialist legality.

Third, the 1976 Constitution provides that “the provisions of superior State organs are obligatory for the inferior [organs].”40 Importantly, this principle would exclude judicial review. This principle supports unity of power, and seeks to preclude constitutional conflicts between state institutions, such as courts’ challenging unconstitutional actions of the legislature and the executive. This reflects the socialist principle of democratic centralism. Democratic centralism means the legislature is the highest body of state power, and other state institutions are inferior to it. Within relationships are hierarchical, not equal. The legislature is located at the top of the constitutional pyramid, and therefore can control the constitutionality of its own laws and the actions of other state institutions. Other state institutions, such as courts, are inferior to the legislature, and therefore cannot review the constitutionality of its law.

framework, constitutional

the centralized

Fourth, the 1976 Constitution includes a bill of rights but establishes that “[n]one of the freedoms recognized for the citizens can be exercised against what is established in the Constitution and the laws, or against the existence and objectives of the socialist State, or against the decision of the Cuban people to construct socialism and communism. The infraction of this principle is punishable.”41 This provision is a statement of statist rights: the practice of individuals rights is for the state’s interests. Consequently, the state can control, including by punishment, the practice of constitutional rights to ensure that the practice is consistent with the state’s socialist

objectives. Constitutional rights are not the base for citizens to challenge their the state. Judicial review, which enables citizens constitutional rights against the state encroachment, contradicts the socialist conception of statist rights. This explains why judicial review was abolished.

to claim

II. EXPLORATION

A. New Legal Framework

In a referendum in 2019, Cubans adopted a new constitution that replaced the 1976 Constitution.42 The 2019 Constitution continues the socialist regime43 but introduces important reforms, including constitutional review. The Constitution consolidates legislative review but restores judicial review of constitutionality. Yet, the restored version of judicial review is narrower than the version established in the 1940 Constitution. According to the 2019 Constitution, courts are only allowed to review concrete state actions (applied to specific individuals in specific matters) affecting constitutional rights. They are not empowered to review laws and regulations which have general effects.44 Rather, the latter power remains in the hands of the legislature and the executive.

To specify the procedure of judicial review, the National Assembly enacted the Ley 153/2022 Del Proceso De Amparo De Los Derechos Constitucionales [Law of the Process of Protection of Constitutional Rights] (hereinafter “Ley 153”).45 Ley 153 was drafted by a working group consisting of officials, and specialists from the Parliament, the Council of State, the People’s Supreme Court, the General Prosecutor’s Office of the Republic, the Ministry of Justice, and the Law School of the University of Havana.46 The drafters consulted foreign laws and national antecedents, including the 1940 Constitution.47 Rubén Remigio Ferro, president of the

People’s Supreme Court, underlined that “[t]he Law is intended to make effective the jurisdictional protection of constitutional rights in the event of damages suffered by individuals.”48 The Law enables citizens to make a claim in courts when their constitutional rights are damaged by the improper action or omission by State bodies, officials, or employees, or by individuals or non-State entities in the performance of their duties.49 All fundamental rights recognized in the Constitution “that do not have a means of defense in judicial proceedings of other matters (civil, family, administrative, labor and social security, commercial and criminal) and that have been or are being violated since its entry into force, may be the subject of a claim.”50

The Constitution and Ley 153 deal with various aspects of the

constitutional review system, including objects, agencies, and power.

The objects of Cuba’s constitutional review are legal instruments and actions of state institutions that can be checked to determine whether they are consistent with the Constitution. They can be grouped into three types: legislation, regulation, and action. Legislation refers a law that has general effect enacted by the legislature. The “Law” enacted by the National Assembly are not the object of constitutional review. Yet, the “decree-law” enacted by the Council of the State is constitutionally reviewable. Another object of constitutional review is the executive-administrative regulations subjects including presidential decrees; decrees and agreements of Council of Ministers; agreements or rulings of the municipal assemblies of the People’s Power (or municipal agreements); and policies issued by provincial governors (provincial policies). Finally, state actions and private actions that have specific effects on constitutional rights in individual cases can be checked constitutionally.

Review agencies are state institutions or individuals vested with the power to check whether legal instruments or actions are consistent with the Constitution. They include legislative, executive, and judicial agencies.

The power of constitutional review comprises (1) proposing relevant agencies to review the constitutionality of regulations or action; (2) suspending legal instruments found as unconstitutional; (3) revoking the effect of unconstitutional legal instruments; (4) modifying unconstitutional contents of the legal instruments; and (5) reinstituting constitutional rights. The table below summarizes the features of Cuba’s mixed constitutional review system.

Table: Cuba’s Model of Mixed Constitutional Review

Model Objects

Legislative Review Legislation Executive Regulation

Executive Review Executive Regulation State Actions and

Judicial Review

Agencies

National Assembly; Council of State

Powers

Suspension, revocation, modification

President of State; Council of Ministers; Provincial Governor Proposing, suspension, revocation, modification

Functional Omissions; private actions. Courts

Restitution

B. Continuity of Political Review

The 2019 Constitution continues and enhances the political review of constitutionality. Both the legislature and the executive are empowered to review the constitutionality of legislation and government regulations.

Legislative Review: The 2019 Constitution vests the review power to legislative agencies including the National Assembly of People’s Power and its Council of State.

The National Assembly is defined as “the supreme organ of the power of the State.”51 This institution “is the only organ with legislative and constituent power within the Republic.”52 It is empowered “[t]o issue a general and obligatory interpretation of the Constitution and the laws.”53 The Constitution requires the National Assembly “[t]o ensure the constitutionality of the laws, decrees with the force of law, presidential decrees, decrees, and other general provisions in accordance with the procedures prescribed by the law.”54 For this purpose, the National Assembly has the review power. It can completely or partially revoke unconstitutional legislation by the Council of State and unconstitutional regulations by the central executive and the municipal assemblies.55

The Council of State, a standing institution of the National Assembly, exercises most legislative power by enacting the decree-laws between sessions of the National Assembly, subject to its approval in the most the immediate session.56 implementation of the constitutionality of legal instruments.57 The Council of State can (1) suspend unconstitutional regulations of central government and inform the National Assembly of revoke and modify unconstitutional regulations of the provincial governors or councils.58

the Constitution and hence

to supervise review

revocation, and

It also has

function

(2)

Executive Review: The 2019 Constitution also vests the review power to executive agencies namely the President of the Republic, the Council of Ministers, and the Provincial Governor.

The President is elected by the National Assembly from among its representatives for a period of five years.59 The Constitution requires the President “to comply with and ensure respect for the Constitution and the laws.”60 Therefore, the President has some role in constitutional review. The President can propose the suspension, modification, or revocation of unconstitutional regulations.61

The Council of Ministers is the executive and administrative organ, constituting the Government of the Republic.62 It is required “to comply with and ensure compliance with the Constitution and the laws.”63 Therefore, it has the review power. The Council of Ministers can (1) suspend unconstitutional regulations of the provincial councils, and report to the Council of State or National Assembly as appropriate, and (2) revoke policies of provincial governors that contradict the Constitution.64

The provincial Governor is the executive-administrative authority within the province, elected by delegates of the Municipal Assemblies of People’s Power.65 The Governor has the duty “[t]o comply with, and ensure compliance with, the Constitution and the laws.”66 Therefore, the Governor is vested with the review power. The Governor can (1) suspend

unconstitutional regulations of the councils of Municipal Administration, and (2) revoke or modify unconstitutional regulations of administrative provincial authorities.67

Thus,

the 2019 Constitution consolidates political review of constitutionality. Compared with the 1976 Constitution, it includes more detailed rules about the distribution of legislative review, and new rules about executive review.

C. Restoration of Judicial Review.

While entrenching political review, the 2019 Constitution partially restores judicial review. It stipulates that “The State guarantees, in accordance with the law, that people may access judicial bodies in order to obtain effective protection of their rights and legitimate interests.”68 Thus, the Constitution entrenches judicial protection of fundamental rights. It further states,

The law establishes the rights protected under this guarantee, and the

preferential, expedited, and reduced proceedings to comply with it.70

This provision establishes the base for constitutional complaints. Citizens can file a complaint with the court to obtain restitution if their constitutional rights are violated by state and private actions.

Ley 153 was enacted to specify the procedures for constitutional complaints. The law reaffirms that citizens can claim their constitutional rights in courts. The objects of judicial review are improper action or omission of the functions by state organs or their individuals, and by private individuals or by non-state entities.71 The ground for review is whether the improper action or omission violates constitutional rights, which causes damages or losses for persons.72 The law provides detailed

rules on jurisdiction, competence, parties, pre-trial measures, trials, appeals, and execution of court rulings. Some major points of these issues are as follows:

Jurisdiction: The Supreme People’s Court and provincial courts have the jurisdiction to hear constitutional complaints.73 According to Law 140 on the Courts of Justice, the court system in Cuba includes the Supreme People’s Court; the provincial people’s courts; the municipal people’s courts; and the military courts.74 The judicial review power is vested in the Supreme People’s Court and the Provincial People’s Court.75 The Constitutional Rights Protection Chambers are set up in the Supreme People’s Court and the People’s Provincial Courts.76 Ley 153 excludes judicial review constitutionality of legislation and regulations which fall under the jurisdiction of political review.77

Competence: Ley 153 divides competence of judicial review between the Supreme People’s Court and the Provincial People’s Courts. In general, the former hears appeals and the first instance of constitutional complaints against actors of the central government, while the latter hears the first instance of constitutional complaints of other state and non-state actors. More specifically, Article 9 of Ley 153 provides that the Supreme People’s Court is competent to hear, in the first instance, claims aimed at the restitution of the constitutional rights allegedly violated by improper action or omission of functions committed by the National Assembly, the Council of State, the President and Vice-President of the Republic, the Council of Ministers and the Prime Minister, their directors, officers or employees.78 The Court is also competent to hear appeals against final decisions of the first instance.79 Article 10 of Ley 153 stipulates that the Provincial People’s Courts hear, in the first instance, claims for the restitution of the constitutional rights allegedly violated by improper action or omission of functions committed by the directors, officials, or employees of the bodies of the States not included in Article 9, as well as by individuals or nonState entities.80

Parties: The claimants include the aggrieved person and the prosecutor.81 The defendants are: (a) state bodies, their directors, officials or employees allegedly violating constitutional rights; and (b) individuals and non-state entities allegedly violating constitutional rights.82

Pre-trial proceedings and interim measures: Before the process of trial, preliminary steps may be carried out to check the identity and capacity of the person against whom the claim is to be directed; and preliminary inquiry into evidence at risk of being lost.83 The court may, of its own motion or at the request of a party, adopt precautionary measures.84 As precautionary measures, the court may grant the immediate cessation of the act that causes the alleged damage, the suspension carrying out a specific activity or conduct, and the temporary closure of premises or establishments, among others.85

Claim and response: The claim generally must be filed within ninety days from the moment the plaintiff becomes aware of the act that violated the constitutional right.86 Once the claim is admitted, the defendant is summoned to appear and answer it within ten days.87 If the defendant acquiesces, the court can issue a judgment without further proceedings.88

Sentence: Judgments are issued within ten days after the closure of the proceedings.89 To order reparation for the damage or harm caused, the court specifically attends to the request but may rule on other violations of constitutional rights intimately related to the subject matter of the proceeding.90

Appeal: The purpose of the appeal is to review judicial decisions of the first instance to verify compliance with the Constitution’s protection of fundamental rights, in conformity with the principles of constitutional supremacy and due process.91 The appeal will be resolved by the Supreme People’s Court.92

Execution: Once the final judicial decision has been issued, the court issues the corresponding orders for the execution of the decision.93 The court may send communications to the state organs and other institutions or organizations, and request that they provide relevant assistance to implementing the court ruling.94

III. EXPLANATION

Why does Cuba retain political review and reestablish judicial review of constitutionality? This section explains this question, by integrating four approaches (historical, discursive, rational choice, and sociological) in new institutionalism in political science.95

A. The Logics of Political Review

continuity

review of constitutionality in Cuba are shaped by path dependency, socialist ideas, political interests, and the symbolic values.

consolidation of political

and

First, the 2019 Constitution and Ley 153 continue and enhance political review of constitutionality because of path dependency which is in turn shaped by the Cuban Revolution as a critical juncture.96 The Revolution radically altered the course of constitutional development in Cuba toward socialism which is hard to reverse. The reversion of socialism is hard because those who are in power likely have interests and resources, such as institutions, finances, personnel, propaganda mechanisms, and putative systems, required to maintain their existing socialist regime. The reversion is also difficult because regime change is costly from potential radical conflicts, and social chaos. The commitments of the Revolution were codified in the 1976 socialist Constitution.97 Stuck with the constitutional past, the 2019 Constitution retains basic socialist principles

established by the preceding charter, and thus concomitantly entrenches the political review of constitutionality.

Second, political review of constitutionality is shaped by continued socialist ideas and principles of party vanguardism, socialist legality, democratic centralism, and statist rights. The 2019 Constitution reaffirms that the Communist Party of Cuba “is the superior driving force of the society and the State.”98 As the Party is the superior driving force of the society and the State, laws become the embodiment of the party’s superiority explaining further why it is not subject to social challenges through judicial venues. Rather, the constitutionality of law must be reviewed through a political process, which would therefore allow the Party to control the process through its party members, dispersed and integrated into the review agencies.

The 2019 Constitution also affirms socialist legality: “All are obligated to strictly adhere to socialist law.”99 “All” here refers to citizens and lower state agencies. Socialist legality requires citizens and lower state agencies to strictly observe the laws and regulations enacted by legislative and executive institutions of the central government.100 The key concern of socialist legality is social order and the hierarchy in the legal order rather than justice. The unquestionable observance of law is considered necessary to maintain social order and legal hierarchy, while the challenge of law based on reasons associated with justice may disrupt the order and the hierarchy. If there are constitutional suspects in the law, these must be checked by the upper state agencies through the closed political process rather than the open judicial process.

The 2019 Constitution retains aspects of democratic centralism, providing that “the orders of the superior State organs are obligatory for the subordinate State organs.”101 This principle requires lower institutions to subordinate to higher institutions.102 The National Assembly is the supreme body of state power as the institutional embodiment of democratic centralism. It is also the supreme body of constitutional review, which means it can consider and invalidate unconstitutional decree-laws and executive regulations, while its legislation is not subject to review by any

institution. Democratic centralism also

state the constitutionality of the regulations of inferior executive-administrative agencies must be checked by the superior ones. Within the centralized constitutional framework of the 2019 Constitution, the National Assembly and the Government are superior to courts, and hence courts are not allowed to review the constitutionality of legislation and government regulations.

requires

that

The 2019 Constitution continues the statist conception of rights. In alignment with state regulation of rights based on the state’s own interests, the 2019 Constitution provides that “the exercise of the rights and liberties provided for in this Constitution implies responsibilities” including the responsibility “to demonstrate the required respect to the authorities and their agents.”103 Thus, rights must be balanced with duties to the state. Statist rights require citizens to respect rather than to invocate courts to challenge the law issued by legislative and executive authorities. The continuity of statist rights explains the exclusion of judicial review of law and government regulations.

Third, the continuity of political review is shaped by political interests. Many state institutions in Cuba can issue legal instruments that have general effects. As the Constitution entrenches a one-party regime and centralized power, top political elites likely possess a high incentive to maintain political control of the constitutionality of laws and regulations issued by lower government organs to centralize power and to prevent localism. A purpose of political review is to ensure that local dynamics function; however, the influence of local dynamics should be limited to avoid undermining the authority of the central government. While the grounds for political review are not specified in the Constitution, they should include not only constitutional rights but also constitutional vertical distribution of central-local powers. A vertical distribution of central-local powers enables political authorities to review regulations in order to determine whether it contradicts a constitutional right or constitutional empowerment to the issuing agency. The consideration tends to be that political review of power distribution is necessary to ensure that lower agencies would not undermine the power of central agencies.

Political interest also explains the exclusion of judicial review of legislations and regulations. Although Cuba is a single-party regime, oppositions to the government are presented in various forms. Reportedly, “Opposition and dissident groups and projects have developed in the recent

past. The best known is the Varela Project, which gathered more than 11,000 signatures to petition the National Assembly to amend Cuba’s laws and permit free elections.”104 Judicial review of legislation and regulations may open the window of opportunity for citizens and their organizations to oppose the government not in specific cases but in the general practice of the law-making and regulatory power. Significantly, political elites are likely to oppose and prevent the open process of judicial review since they have a vested the single-party regime and consolidating their centralized power.

in protecting

interest

Finally, political review of constitutionality has symbolic values. Despite the formal review power confirmed by the 1976 Constitution, “the Assembly has not declared unconstitutional a single normative act, law, decree-law, decree, resolution or regulation in more than forty-five years.”105 It can be predicted that the continued establishment of legislative review in the 2019 Constitution may be similarly ineffective. Political review in Cuba and in other socialist countries is created not merely for use but for embedding socialist values. The formal codification of political review is expressive of the socialist statements regarding legislative supremacy and socialist legality which are deemed legitimate in the socialist constitutional culture. Political elites are motivated by both possible consequences and the social meaning of political review for constitutional actors. The existence of political review both precludes judicial review for political concerns and expresses the socialist commitments to legislative supremacy and hierarchy in the legal order.

B. The Logics of Judicial Review

While political review is consolidated, judicial review is partially restored. Cuba’s restoration of judicial review is shaped by layering, discursive dynamics, political interests, and socialization.

First, the reestablishment of judicial review in Cuba is shaped by layering or the process of incorporating new institutions into the existing institutional framework.106 Path dependency does not completely exclude judicial review presents constitutional change. The restoration of

rulings overlay existing

constitutional layering which “occurs when new constitutional provisions, regulatory legislation, and administrative practices.”107 In this case, the partial addition of judicial review is acceptable as this does not radically alter the course of constitutional development constrained by the critical juncture. Political review remains hegemonic, while judicial review is peripheral. Judicial review, therefore, does not replace but coexists with political review as a supplementary layer to the broader constitutional review system.

Second, judicial review is restored thanks to discursive dynamics or the emergence of new ideas and the exchanges of such ideas. An important development involves the idea of human rights. The idea of human rights was rejected in Cuba for decades because groups and organizations used this idea to oppose the government. 108 However, such landscape has changed since the 1990s when academic events were held and books on human rights were distributed in Cuba.109 In the 21st century, state magazines such as Temas, Espacio Laical, Palabra Nueva, and Caminos widely covered themes related to human rights.110 Elementary and high schools also promoted human rights, particularly the social rights of children and youth.111 Both public discourse and education can increase the popular awareness of human rights, which may incentivize the political elite’s commitment to constitutional protection of human rights including access to judicial remedy.

Consequently, the 2019 Constitution adopts the universalist idea of human rights for the first time in Cuba’s constitutional history. It states that “the Cuban State recognizes and guarantees to a person the nonrenounceable, indivisible, and interdependent enjoyment and exercise of human rights, in correspondence with the principles of progressivity and non-discrimination. Their respect and guarantee are obligatory for all.”112 Different from the socialist conception of rights as given and determined by the state, this provision indicates a universalist conception of rights inherent to human beings which requires the state’s respect and acknowledgment. The Constitution, therefore, adopts the mixture of both competing statist and universal conceptions of rights. While the statist

model of rights justifies the political control of constitutionality, the universalist model of rights enables judicial review of state actions that are considered to have violated the constitutionalized human rights. Moreover, compared with the 1976 Constitution, the 2019 Constitution includes many new fundamental rights, such as the right to life,113 prohibition of torture,114 thought,116 right presumption of innocence,117 prohibition of discrimination,118 right to housing,119 right to water,120 and right to healthy environment.121 These strong constitutional commitments to human rights require judicial protection of rights against encroachments by state actions.

information about government,115

freedom of

Another important discursive development has to do with the idea of the rule of law. The rule of law, as an idea, was rejected in Cuba for decades as a bourgeois idea. 122 However, in 1992, Cuban professor Julio Fernández Bulté published an essay on the rule of law in the Revista Cubana de Derecho, marking the beginning of the return to the debate on the rule of law.123 Cuban jurists, in articles, monographs, and master’s and doctoral theses, began to debate ideas on the rule of law, human rights, their procedural guarantees, legal due process, and the role of the Constitution in the legal order.124 The idea of the rule of law was also adopted by the political elites. The Conceptualization of the Cuban Economic and Social Model of Socialist Development adopted at the Party’s 7th Congress in 2016125 considers “the Socialist State of Law” as a guarantor of equality and freedom, independence, sovereignty, popular participation, sustainable development, territorial integrity, stability and internal security, national identity, nation’s heritage, historical memory,

among others.126 Consequently,

culture, the 2019 Constitution institutionalizes the idea of rule of law, defining Cuba as a “socialist state of law.”127

Different from the concept of socialist legality which requires citizens’ strict adherence to the law, the concept of the rule of law state requires legality in the state actions at all levels. The 2019 Constitution adopts these competing concepts. This constitutional mixture accounts for the mixed model of constitutional review. While socialist legality provides the conventional justification for political review of the constitutionality of law, the rule of law provides a new theoretical justification for courts to determine the constitutionality of state actions.

The restoration of judicial review in Cuba is also driven by a comparative discourse on judicial review. Reportedly, “In the explanatory statement of the bill [of Ley 153] that was presented to the National Assembly, it is stated that, for its drafting, texts and legislation on the matter in the Latin American and European spheres were consulted, as well as national precedents, including the 1940 Constitution, which instituted the Court of Constitutional and Social Guarantees.”128 The widespread ideas and practices of judicial review as the mechanism for constitutional protection of human rights, and as implemented in Latin America,129 informed Cuba’s comparative constitutional discourse, which contributed to the partial re-creation of judicial review.

Additionally, comparative constitutional history is also relevant. The 1940 Constitution provides a comparative resource for the recovery of judicial review. Parallels to the 1940 Constitution present change as a return to Cuba’s constitutional past. The invocation of the constitutional past to re-establish judicial review in Cuba echoes to some extent the comparative experiences of “restoration constitutionalism” elsewhere.130

Third, the partial restoration of judicial review is also motivated by political interests in enhancing domestic and international legitimacy. The

partial restoration of judicial review provides an open venue for citizens to sue government actions. This mechanism of review can address domestic concerns and may reduce opposition to the government. The domestic concern is that “We are still lacking a People’s Advocate and a recourse to protective measures that truly allow the defense of rights without the extensive restrictions imposed by the new Cuban law allowing these measures, known in Spanish as ‘amparo.’ We are also without a Constitutional Tribunal or an institution of any type to rule if administrative acts or new laws are constitutional. We need to strive to obtain these reforms.”131 The reestablishment of judicial review, including the setting up of the Constitutional Rights Protection Chambers in the Supreme People’s Court and the People’s Provincial Courts, responds to this reformist concern, helping to boost the government’s domestic legitimacy. Moreover, judicial protection of constitutional rights can also mitigate international criticisms on issues related to the restrictions of human rights in Cuba,132 which further enhances the government’s international legitimacy.

Fourth, judicial review is restored in Cuba because doing so is a widely accepted norm. It is common and acceptable in a modern state for citizens to sue government officials for violating the constitutional rights afforded to all citizens. Cuba’s adoption of judicial review, therefore, the elevates constitutionalizing of human rights and their judicial protection are a widely accepted norm.133 Judicial review was therefore adopted in Cuba because it is regarded as the most acceptable institutional action according to the global standard of constitutionalism.

the “world society” where

this socialist state

C. The Logics of Mixed Constitutional Review.

Cuba’s model of constitutional review is mixed because it is shaped by a mixture of various historical, ideational, political, and sociological factors.

Cuba’s mixed constitutional review is shaped by different historical influences. The dependence on the socialist constitutional path set by the critical juncture of the Revolution explains the continuity in the political control of constitutionality. At the same time, the socialist constitutional path is broad enough to accommodate the addition of layers provided that such layers are reformative as opposed to revolutionary. Thus, judicial review being a reformative layer, was incorporated into the existing system of constitutional review.

is

The mixed constitutional review in Cuba

institutional embodiment of its underpinning mixture of socialist and universal, liberal ideas and discourse. Cuba’s Constitution is predominantly socialist, but not purely socialist. Constitutional reform led to the injection of non-socialist ideas into the Constitution, including the ideas of human rights and the rule of law. The socialist ideas of party vanguardism, legislative supremacy, and socialist legality shape judicial review, while the ideas of human rights and the rule of law provide the epistemic foundations for judicial review. These competing ideas can co-exist, but the socialist ideas remain dominant, which leads to the institutional consequence such that political review is superior and judicial review is inferior.

In addition, the Cuban state adopts both political and judicial review of constitutionality because it has competing political interests. On one hand, the socialist regime needs to maintain social order and legal hierarchy, which accounts for the continuity of legislative and executive control of the constitutionality of lower legislation. On the other hand, the state needs to respond to both the domestic and international concerns regarding human rights, which is addressed by providing a judicial venue for citizens to seek legal remedy when their constitutional rights are violated by state actions. However, risks associated with this method of judicial protection of constitutional rights should be noted. Mainly, judicial review may lead to the proliferation of constitutional litigations and constant public challenge to the government which may undermine social order and legal hierarchy. The solution is to limit judicial review to state actions and maintain the political review of legislations and regulations. This mixed solution allows political elites to pursue competing interests of protecting social order and legal hierarchy and respond to social demands and international pressures at the same time.

Finally, the constitutional review system in Cuba is mixed because it embodies competing values. On one hand, political review is both conducive and reflective of a socialist constitutional culture. On the other hand, judicial review is considered to be a universally accepted norm. Therefore, political review is expressive of Cuba’s socialist values, while

judicial review signals that Cuba is adopting values shared amongst the international community.

IV. NORMATIVE CONSIDERATIONS

Cuba’s unique design of mixed constitutional review has normative implications for other socialist countries struggling to reform their systems of constitutional review. At the same time, the Cuban version of mixed constitutional review remains in its infancy and must continue to evolve. This part explores the possible adoption of Cuba’s mixed constitutional review by other socialist countries, as well as the possible changes and developments to be made for Cuba’s current version of constitutional review.

A. The Limited Model of Mixed Constitutional Review

In the current version of Cuba’s mixed constitutional review, the judicial review component is still highly limited. For this section, Cuba’s current form of constitutional review shall be referred to as the limited model of mixed constitutional review. In this model, the objectives of judicial review are limited. Courts can only review state actions and individual actions; they are not allowed to review legislation and regulations. This limited model, however, may provide a useful reference for other socialist countries. Cuba is the only current socialist country to adopt a judicial review of constitutionality while simultaneously retaining a political review. The other four socialist countries, China, Vietnam, Laos, and North Korea, only have a political review of constitutionality, which is largely formalistic. In the short term, the integration of limited judicial review, like the Cuban model, can further enhance the comprehensiveness of the current constitutional reviews in these countries.

Vietnam vests the review power to the National Assembly, its Standing Committee, and the Prime Minister. Vietnam’s 2013 Constitution stipulates that the National Assembly is “the highest state power body”134 and has “to exercise the power of supreme oversight over the observance of the Constitution.”135 The National Assembly, therefore, has the review power or the power “to annul documents of the President, Standing Committee of the National Assembly, Government, Prime Minister, Supreme People’s Court and Supreme People’s Procuracy that contravene

implementation of documents of

the Constitution.”136 The Standing Committee of the National Assembly has the the power “to suspend Government, Prime Minister, Supreme People’s Court or Supreme People’s Procuracy that contravene the Constitution.”137 The National Assembly has never practiced its review power.138 The Prime Minister is authorized “to suspend the implementation of, or annul the documents, of Ministers, Heads of ministerial-level agencies, People’s Committees, Chairpersons of the People’s Committees of provinces or centrally run cities that contravene the Constitution” and “to suspend the implementation of resolutions of the People’s Councils of provinces or centrally run cities that contravene the Constitution.”139 The Prime Minister has virtually never used the review power.140 In short, political review of constitutionality in Vietnam has been ineffective, like the case of Cuba under a single mode of constitutional review.

China also adopts a political review of constitutionality. Accordingly, the power to review is vested in the National People’s Congress (NPC) and its Standing Committee. China’s Constitution provides that the National People’s Congress “is the highest organ of state power”141 and has the power “to supervise the enforcement of the Constitution.”142 China’s Legislation Law specifies that “The National People’s Congress has the authority to modify or annul any inappropriate law formulated by its Standing Committee, and to annul any autonomous regulations or separate regulations approved by the Constitution.”143 China’s Constitution empowers the Standing Committee of the National People’s Congress “to annul those administrative rules and regulations, decisions or orders of the State Council that contravene the Constitution or the statutes” and “to annul those local regulations or decisions of the organs of state power of provinces, autonomous regions

its Standing Committee

that violate

and municipalities directly under the Central Government that contravene the Constitution.”144 In practice, both the National People’s Congress and its Standing Committee have never practiced their review power. 145 Thus, the political review in China has been ineffective, like the case of Cuba before it achieved its limited model and Vietnam’s current political review of constitutionality.

implementation of

the Constitution and

In the same vein, Laos adopts political review of constitutionality. Laos’ Constitution states that the National Assembly “is the highest power organization of the State”146 and has the power “to oversee the observance and the State organizations.”147 To supervise constitutional implementation, it has the review power or the power to overturn the legislations of other state organs which contradict with the Constitution.148 In reality, the National Assembly “has yet to systematically and substantively engage with the practice of constitutional review ever since the country was established in 1975.”149 Thus, a singular mode of political review in Laos is inefficient, like the aforementioned cases of Cuba, Vietnam, and China.

laws of

The story is largely the same in North Korea, another socialist state. There, the Constitution provides that “the Supreme People’s Assembly is the highest organ of State power in the Democratic People’s Republic of Korea.”150 The Constitution empowers the Standing Committee of the Supreme People’s Assembly to rescind decisions and directives of state organs that run counter to the Constitution.151 It should be noted that due to the lack of information on constitutional practices in North Korea, it can only be assumed that the situation with regard to constitutional review in North Korea shares the same sense of incompleteness as evidenced in other socialist countries.

Importantly, the fact that political institutions do not practice their review power does not mean that there are no violations of the constitution

by statutes and regulations under these socialist regimes. For example, Chinese scholar Hu Jingguang stated that “there are situations in which normative documents violate the Constitution in actual social life and State activities in China, however the NPC and its Standing Committee have never used the Constitution and the Law on Legislation to start constitutional review.”152 While regulations that violate the constitution do exist under these socialist regimes, its political review is not adequate in responding to these violations due to a wide range of reasons. First, the socialist legislators do not meet often, and the legislators are occupied with their individual legislative work, which limits their time and resources to work on constitutional review.153 Second, as the socialist regimes have a strong concern about the unity of power as opposed to a separation of power, which means that a legislative finding of unconstitutionality with regards to the executive regulations may present personal conflicts, which political elites would likely seek to avoid.

Why do the socialist constitutions entrench political review, despite its inefficiencies One possible explanation is the new institutional logic of appropriateness, which suggests that “rules are followed because they are seen as natural, rightful, expected, and legitimate.”154 Political review is deemed legitimate in the socialist regimes. Political review is created not merely for use but is the institutional expression of a socialist constitutional identity. It demonstrates democratic centralism.

Due to its ineffectiveness, for decades, scholars, lawyers, and other individuals in socialist countries, particularly China and Vietnam, have struggled to find the most appropriate constitutional review system reform, including the introduction of judicial review.155 In response to discursive dynamics, a 2013 draft of the Vietnamese Constitution introduced a specialist review institution called Constitutional Council equipped with advisory power; however, this institution was excluded in the final version of the Constitution.156 Consequently, the exclusion in the final version left

Vietnam with only a political review of constitutionality. China’s 2018 the Constitution and Law introduced Constitutional Amendment Committee within the National Congress, but this Committee was only vested with a limited advisory power of constitutional review.157 The rejection of judicial review in China and Vietnam is due to the contradicting nature of these aforementioned institutions and the socialist constitutional principles. Importantly additionally, political elites are also cognizant and concerned that the implementation of a judicial review may create a venue for citizens to challenge law and government actions.

Yet, Cuba provides a hope for a constitutional review systems reform in other socialist states such as China, Vietnam, Laos, and even North Korea. Like Cuba, political review of law can be retained in these four countries for various historical, ideational, political, and symbolic reasons, but judicial review of state actions that violate constitutional rights can be introduced for individual cases. The introduction of a judicial review system does not replace political review; hence, it does not result in the in a socialist context. The undermining of commitment to the protection of human rights is a conducive condition for the creation of judicial review in the socialist countries.158 Political elites should also recognize that they have a vested political interest in responding to the domestic demands of human rights protection and to respond to international criticisms of the human rights condition. This is because the addition of a judicial review of constitutionality will likely enhance their domestic and international legitimacy. Finally, judicial review can indicate that the socialist states follow a global trend in constitutional development.

legislative supremacy

B. The Expanded Model of Mixed Constitutional Review.

In the long term, an expanded model of mixed constitutional review can be adopted in Cuba and other socialist states of China, Vietnam, Laos, and North Korea. The expanded model proposes the integration of political review and judicial review in evaluating regulations and legislation. Thus, the issues subjected to judicial review would be expanded to executive regulations and statutes.

Constitutional review of executive regulations should be prioritized in the socialist states. Legislation in the socialist countries is normally generic statutes; hence their implementation requires more detailed regulations of executive agencies. The nature of generic statutes provides ample room for unregulated expansion of the executive’s regulatory power. Such unregulated expansion of the executive’s power will ultimately lead to undermining constitutional rights. This requires an effective review of the constitutionality of executive regulations.

The expanded model of mixed constitutional review also allows both political and judicial review of legislation. The socialist constitutions of the aforementioned nation states currently do not allow any institution to engage in reviewing the constitutionality of the laws made by the legislature. Rather, the legislature itself will conduct its own review to determine whether its law is consistent with the constitution. However, as previously discussed, their review activities remain largely dormant. This article argues that as the legal systems in the socialist countries continue to develop and become more sophisticated and advanced, constitutional review of legislation should serve a functional purpose rather than as an expression of socialist values. Because legislation is likely to become more detailed, the chances of conflicting with constitutional rights subsequently increase; therefore, an effective constitutionality review is necessary.

An effective review of the constitutionality of executive regulations requires a mixture of legislative and judicial review. The review can be carried out by different agencies, including internal reviews by legislative and executive bodies before each law and regulations are enacted (ex ante review). The law and regulations can also be checked externally by courts after the enactment of the legal instruments (ex post review). For ideological reasons, it is hard for the socialist states to abolish legislative review of statutes and executive regulations albeit its formalist existence. But judicial review of legislation and executive regulation can be introduced together with the existing legislative review. Courts can declare the incompatibility of a statute or a regulation with the Constitution and refer the legal instrument under question to relevant legislative and executive agencies for nullification. This mixed design allows effective judicial review of statutes and regulations while protecting the socialist principle of democratic centralism and its institutional embodiment of legislative supremacy. This is because the legislature ultimately retains the power to void unconstitutional statutes and regulations.

Comparative experiences of the “weak form” of judicial review159 provides a useful reference for encouraging the addition of a judicial constitutional review of legislation in the socialist states. Harvard Law professor Mark Tushnet distinguishes the “strong form” of judicial review in the U.S. and other countries from the “weak form” of judicial review in Canada, the UK, New Zealand, and other countries.160 In the strong form, “the courts’ constitutional interpretations are authoritative and binding on the other branches.”161 Whereas, in the weak form, courts are empowered to determine whether a statute is consistent with the constitution, but “ordinary legislative majorities can displace judicial interpretations of the constitution in the relatively short run.”162 The weak form of judicial review adopted in the commonwealth constitutional model is “the necessary corollary of the doctrine of parliamentary supremacy.”163

Like

the commonwealth constitutional model,

socialist constitutional model entrenches legislative supremacy, which renders a weak form of judicial review of legislation a promising alternative. Accordingly, courts can issue a declaration on whether a statute is consistent with the constitution. However, this judicial declaration is not binding to all state institutions. The legislature retains the power to have the final say about whether a statute or an executive regulation is consistent with the Constitution. This mixed design can create a functional judicial review of the constitutionality of legislation and regulation while retaining legislative supremacy.

In fact, the foundation for the expanded model of mixed constitutional review is evidenced in the case of Cuba and Vietnam. In Cuba, Ley 153 provides that if a court finds that a general provision is unconstitutional, it can alert this to the Governing Council of the Supreme People’s Court so that the Governing Council can propose the corresponding legislative or executive agencies to suspend, revoke, modify, or declare the provision unconstitutional.164 The courts alone do not have the power to declare a law or regulation as unconstitutional, nor does it have the final authority to

invalidate a law or regulation found as unconstitutional. But courts are allowed to refer such legal instrument to relevant authorities to suspend or void. This implies a weak judicial review of law and regulations.

Recently, in June 2024, the National Assembly of Vietnam adopted amendments to the Law on Organization of People’s Courts. The amended Law provides that:

This provision could be categorized as a weak judicial review. The courts can determine whether a legal instrument is incompatible with the Constitution and propose the competent agencies to amend or void the legal instruments. Importantly, the amendment requires competent agencies to respond to the court’s proposal, which is necessary to ensure that legal instruments deemed unconstitutional must be dealt with, and the court’s view about the constitutionality of the instrument must be taken into account.

In both Cuba and Vietnam, courts can assess but are not allowed to declare the incompatibility of the law and regulations with the Constitution. The rationale behind this may point towards a preference for handling constitutional conflicts in a closed process involving internal, institutional communications of courts and relevant political institutions. The expanded model of mixed constitutional review requires a further step: the courts can declare incompatibility and request the legislative and executive agencies to overturn the legal instruments such as legislations and regulations. The judiciary declaration of incompatibility is not binding to state institutions but provides the necessary function of informing the public of the court’s construction of constitutionality. Ensuring that the court’s interpretation of constitutionality the public will provide accurate information for the public to engage in constitutional discourse. The judicial declaration is also to ensure the transparency of the process of constitutional review.

is accessible

CONCLUSION

Constitutionalism is possible under socialism to some extent. There is room for socialist states to create effective mechanisms to review the constitutionality of law, regulations, and state actions. The current socialist states all have constitutions that include a bill of rights. While these constitutional rights may be adopted for symbolic face-value reasons, there are various dynamics that put pressure on the need to realize constitutional rights within the socialist states. Internally, the dynamics of public discourse, social mobilization, and human rights activism in countries like China, Cuba, and Vietnam require a highly effective regime of constitutional rights. Externally, the need to attract foreign investments and avoid international criticisms may put pressure on the socialist states to realize their commitments to constitutional rights. As constitutional rights cannot merely exist on paper, constitutional review cannot be merely symbolic. A mixed constitutional review can be a model for the socialist states to realize constitutional rights and constitutionalism generally.

--- FOOTNOTES ---

Part of the Human Rights Law Commons, and the International Law Commons

Copyright 2025 by Ngoc Son Bui Northwestern Journal of Human Rights

Volume 23, Number 3 (2025)

 Professor of Asian laws, Faculty of Law, University of Oxford.

TABLE OF CONTENTS

1 MAURO CAPPELLETTI, JUDICIAL REVIEW IN THE CONTEMPORARY WORLD (1971). 2 Tom Ginsburg & Mila Versteeg, Why Do Countries Adopt Constitutional Review, 30 J. L., ECON.

& ORG. 587, 587 (2014); THE GLOBAL EXPANSION OF JUDICIAL POWER (C, Neal Tate & Torbjorn Vallinder eds., 1997).

3 For the US model, see WILLIAM E. NELSON, MARBURY V. MADISON: THE ORIGINS AND LEGACY OF JUDICIAL REVIEW, SECOND EDITION (2d ed. 2018). For the European model, see MAARTJE DE VISSER, CONSTITUTIONAL REVIEW IN EUROPE: A COMPARATIVE ANALYSIS (2013).

4 Kazuo Fukuda, Towards an Institution-Independent Concept of Constitutional Review,

61 COLUM. J. TRANSNAT’L L. 387, 413, 421 (2023).

5 CONSTITUTION OF THE PEOPLE’S REPUBLIC OF CHINA (1982), art. 67; HIẾN PHÁP NƯỚC CỘNG HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM (2013) (CONSTITUTION), art. 70. For academic discussions, see Yan Lin & Tom Ginsburg, Constitutional Interpretation in Lawmaking: China’s Invisible Constitutional Enforcement Mechanism, 63 AM. J. COMP. L. 467, 467 (2015); Bui Ngoc Son, The Discourse of Constitutional Review in Vietnam, 9 J. COMP. L. 191, 192 (2014).

6 Jorge Olver Mondelo Tamayo & Dianelis Lora Romero, El Proceso De Amparo De Los Derechos

En Cuba. Análisis Crítico De Sus Bases Constitucionales Y Legislativas (The process of amparo of rigths in Cuba. A critical analysis of constitutional and legislative basis), 28 ANUARIO IBEROAMERICANO DE JUSTICIA CONSTITUCIONAL 99, 99–128 (2024).

7 On liberal constitutionalism, see generally ANDRÁS SAJÓ & RENATA UITZ, THE CONSTITUTION

OF FREEDOM (2017).

8 Michael B. Wise, Cuba and Judicial Review, 7 SW. J. L. & TRADE AM. 247, 249-57 (2000). 9 L. B. Klein, The Socialist Constitution of Cuba (1976), 17 COLUM. J. TRANSNAT’L L. 451, 453

(1978).

10 Wise, supra note 8, at 249-250. 11 Id. at 250-51. 12 CONSTITUCION DE LA REPUBLICA DE CUBA [hereinafter CUBA CONSTITUTION OF 1901], art. 83. 13 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 14 TIMOTHY HYDE, CONSTITUTIONAL MODERNISM: ARCHITECTURE AND CIVIL SOCIETY IN CUBA,

1933-1959, 21 (2013).

15 Wise, supra note 8, at 253.

16 CONSTITUCION DE LA REPUBLICA DE CUBA [hereinafter CUBA CONSTITUTION OF 1940], art. 172. 17 Id. art. 174. 18 Id. art. 182. 19 Id. 20 Id. 21 Id. art. 183. 22 Id. 23 Id.

A Law, Decree-Law, Decree, regulation, order, provision or measure which has been declared unconstitutional cannot be applied in any case or form, under penalty of disqualification for the performance of the public position. The sentence in which the unconstitutionality of a legal precept or of a measure or government agreement is declared, will obligate the organism, authority or functionary who has issued the annulled provision, to derogate it immediately. In every case the legislative or regulative provision or governmental measure declared unconstitutional will be considered null and without merit or effect on the day of the publication of the sentence from the bench of the Tribunal.30

24 Id. 25 Id. 26 Id. art. 194. 27 Id. 28 Id. 29 Wise, supra note 8, at 254. 30 CUBA CONSTITUTION OF 1940, art. 194.

31 Wise, supra note 8, at 254-55. 32 Id. at 255. 33 Klein, supra note 9; Cuban Revolution | Summary, Facts, Causes, Effects, & Significance,

BRITANNICA (Apr. 15, 2025), https://www.britannica.com/event/Cuban-Revolution [https://perma.cc/9XMV-8J62].

34 Wise, supra note 8, at 257. 35 CONSTITUCION DE LA REPUBLICA DE CUBA [hereinafter CUBA CONSTITUTION OF 1976], art. 69. 36 Id. art. 106. 37 Id. art. 121. 38 Id. art. 5.

39 Id. art. 10. 40 Id. art. 68-69. 41 Id. art. 62.

42 See Larry Catá Backer & Flora Sapio, Popular Consultation and Referendum in the Making of Contemporary Cuban Socialist Democracy Practice and Constitutional Theory, 27 UNIV. MIA. INT’L & COMPAR. L. REV. 37, 113 (2019).

43 See generally Mark Ginsburg, Constituting Socialism for the Twenty-First Century: Examining

Cuba’s 2019 Constitution, 13 INT’L J. CUBAN STUD. 303 (2021).

44 For example, an administrative confiscation of a phone of individual A is a concrete state action.

A government regulation or a law on confiscation of property has general effect on everyone.

45 Del Proceso de Amparo de los Derechos Constitucionales [Law of the Process of Protection of

Constitutional Rights], 2022 (Ley 153/2022), art. 1 (Cuba) [hereinafter Ley 153].

46 Jorge Ruiz Miyares, Parliament Approves Law for the Protection of Constitutional Rights,

RADIO HABANA CUBA (May 16, 2022 8:37 AM), https://www.radiohc.cu/en/noticias/nacionales/28793 0-parliament-approves-law-for-the-protection-of-constitutional-rights [https://perma.cc/XH8H-8XW7].

47 Id.

48 Id. 49 Id. 50 Id.

51 CONSTITUCION DE LA REPUBLICA DE CUBA [hereinafter CUBA CONSTITUTION OF 2019], art.

102.

52 Id. art. 103. 53 Id. art. 108. 54 Id. 55 Id.

56 See id. art. 120. 57 Id. art. 122. 58 Id. 59 Id. art. 126. 60 Id. art. 128. 61 Id. 62 Id. art. 133. 63 Id. art. 137. 64 Id. art. 137. 65 Id. arts. 174-75. 66 Id. art. 179.

Anyone whose rights as enshrined in this Constitution are violated and who, as a consequence, has suffered harm or prejudice by organs of the State, its leaders, functionaries, or employees while exercising their duties of their position or by undue oversight of these duties, as well as by individuals or by non-State entities, has the right to issue a complaint with the court to obtain restitution of their rights and, in accordance with the law, the corresponding redress or indemnity.69

67 Id. 68 Id. art. 92. 69 Id. art. 99. 70 Id. 71 Ley 153, supra note 45. 72 Id.

73 Id. art. 5. 74 De los Tribunales de Justicia [On the Courts of Justice], 2021 (Ley 140/2021), art. 9 (Cuba)

[hereinafter Ley 140].

75 Ley 153, supra note 45, arts. 9-10. 76 See id. art. 12. 77 See id. art. 5. 78 Id. art. 9.1. 79 Id. art. 9.2. 80 Id. art. 10.

81 Id. art. 13. 82 Id. art. 14. 83 Id. art. 17.1. 84 Id. art. 18.1. 85 Id. art. 19.1. 86 Id. art. 23.1. 87 Id. art. 26. 88 Id. art. 28. 89 Id. art. 33.1. 90 Id. art. 33.3. 91 Id. art. 36. 92 Id. arts. 37.1–37.2.

93 Id. art. 43. 94 Id. art. 44. 95 For more information on the four approaches in new institutionalism, see Peter A. Hall & Rosemary C. R. Taylor, Political Science and the Three New Institutionalisms, 44 POLITICAL STUDIES 936 (1996); Vivien A. Schmidt, Taking Ideas and Discourse Seriously: Explaining Change Through Discursive Institutionalism as the Fourth’New Institutionalism’,2 EUR. POL. SCI. REV. 1 (2010).

96 In historical institutionalism, “the concept of critical juncture refers to situations of uncertainty in which decisions of important actors are causally decisive for the selection of one path of institutional development over other possible paths.” Giovanni Capoccia, Critical Junctures, in THE OXFORD HANDBOOK OF HISTORICAL INSTITUTIONALISM 89 (Orfeo Fioretos et al. eds., 2016).

97 Max Azicri, Change and Institutionalization in the Revolutionary Process: The Cuban Legal

System in the 1970s, 6 REV. SOCIALIST L. 164, 173 (1980).

98 CUBA CONSTITUTION OF 2019, supra note 51, art. 5. (2019). 99 Id. art. 9. 100 George Ginsburgs, The Soviet Procuracy and Forty Years of Socialist Legality 18 THE AM.

SLAVIC AND EAST EUR. REV. 34, 37 (1959).

101 CUBA CONSTITUTION OF 2019, supra note 51 at art. 101. 102 Klaus von Beyme, A Comparative View of Democratic Centralism, 10 GOV’T & OPPOSITION

259, 261 (1975).

103 CUBA CONSTITUTION OF 2019, supra note 51 at art. 90.

104 Jaime Suchlicki, Director, Institute for Cuban and Cuban-American Studies, Opening Remarks at the University of Miami Conference of Transition from Communism: Lessons Learned, Challenges Ahead for Cuba (Nov. 9, 2004).

105 Walter Mondelo, The Year of Laws, ONCUBANEWS (27 Dec. 2022),

https://oncubanews.com/en/cuba/the-year-of-laws/ [https://perma.cc/8UJF-ZHY9].

106 For constitutional layering in from the perspective of historical institutionalism see John

Gillespie, Theorizing Constitutional Change in East Asia 25 CHI. J. INT’L L. 141, 152 (2024).

107 Id. 108 Julio Antonio Fernández Estrada, The Ups and Downs of Human Rights in Cuba, HARVARD REVIEW OF LATIN AMERICA (22 Dec., 2022), https://revista.drclas.harvard.edu/the-ups-and-downs-ofhuman-rights-in-cuba/ [https://perma.cc/6XRW-8M5R].

109 Id. 110 Id. 111 Id. 112 CUBA CONSTITUTION OF 2019, supra note 51 at art. 41.

113 Id. art. 46. 114 Id. art. 51. 115 Id. art 53. 116 Id. art 54. 117 Id. art 95. 118 Id. art 42. 119 Id. art 71. 120 Id. art 76. 121 Id. arts 1, 5, 11. 122 Walter Mondelo, Republic, Rule of Law and Constitution: notes for a debate (I), ONCUBA NEWS (Oct. 3. 2022), https://oncubanews.com/en/cuba/republic-rule-of-law-and-constitution-notes-fora-debate-i/ [https://perma.cc/66P2-T4HD].

123 Id. 124 Id. 125 See Larry Cata Backer, Central Planning versus Markets Marxism: Their Differences and

Consequences for the International Ordering of State, Law, Politics, and Economy 32 CONN J INT’L L 17, 17-35 (2016).

126 See Helen Yaffe, Conceptualising Cuban socialism, INT’L J. OF SOCIALIST RENEWAL BLOG (Jun. 19, 2017), https://links.org.au/conceptualising-cuban-socialism [https://perma.cc/K3MC-84HK]. (summarizing the Conceptualization of the Cuban Economic and Social Model of Socialist Development, adopted by the Seventh Congress of The Communist Party of Cuba in 2016).

127 CUBA CONSTITUTION OF 2019, supra note 51 at art.1. 128 Mondelo, supra note 105. 129 See generally ALLAN R BREWER-CARÍAS, CONSTITUTIONAL PROTECTION OF HUMAN RIGHTS IN

LATIN AMERICA: A COMPARATIVE STUDY OF AMPARO PROCEEDINGS (2008).

130 See Ruti Teitel, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 YALE L.J. 2009, 2069-70 (1997); Venkat Iyer, Restoration Constitutionalism in the South Pacific, 15 PAC. RIM L. & POL’Y J. 39 (2006).

131 Estrada, supra note 107. 132 See e.g., World Report 2024: Cuba, HUMAN RIGHTS WATCH, https://www.hrw.org/worldreport/2024/country-chapters/cuba [https://perma.cc/MS9H-XLXT2022] (last visited Mar. 21, 2025); 2022 Country Reports on Human Rights Practices: Cuba, U.S. DEPARTMENT OF STATE, https://www.st ate.gov/reports/2022-country-reports-on-human-rights-practices/cuba/ [https://perma.cc/JJX2-LKNX] (last visited Mar. 21, 2025).

133 See Colin J. Beck, John W. Meyer, Ralph I. Hosoki, & Gili S. Drori, Constitutions in World Society: A New Measure of Human Rights, in CONSTITUTION-MAKING AND TRANSNAT’L LEGAL ORDER 85 (Gregory Shaffer, Tom Ginsburg, and Terence C. Halliday, eds., 2019). See also Doreen Lustig & J. H. H. Weiler, Judicial Review in the Contemporary World - Retrospective and Prospective, 16 INT’L J. CONST. L. 315 (2018).

134 HIẾN PHÁP NƯỚC CỘNG HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM [CONSTITUTION] (2013), art. 69

(Viet.) [hereinafter VIETNAMESE CONSTITUTION].

135 Id. art. 70.

136 Id. 137 Id. art. 74 138 See Bui Ngoc Son, The Discourse of Constitutional Review in Vietnam, 9 J. OF COMP. L. 191

(2014).

139 VIETNAMESE CONSTITUTION, supra note 133 at art. 98. 140 Phạm Thanh Sơn, Cơ chế bảo vệ Hiến pháp trong tiến trình xây dựng Nhà nước pháp quyền XHCN [Mechanism for protecting the Constitution in the process of building a socialist state under the rule of law], TẠP CHÍ XÂY DỰNG ĐẢNG (July 6, 2023, 3:57 PM), https://www.xaydungdang.org.vn/nha n-quyen-va-cuoc-song/co-che-bao-ve-hien-phap-trong-tien-trinh-xay-dung-nha-nuoc-phap-quyen-xhcn19327 [https://perma.cc/G9A9-HAYZ].

141 CONSTITUTION OF THE PEOPLE’S REPUBLIC OF CHINA (1982, AMENDED THROUGH 2018), art. 57

[hereinafter CONSTITUTION OF CHINA].

142 Id. art. 62. 143 LEGISLATION LAW OF THE PEOPLE’S REPUBLIC OF CHINA (2023), art. 108.

144 CONSTITUTION OF CHINA, supra note 142 at art. 67. 145 Zhu Guobin, Constitutional Review ‘with Chinese Characteristics’: Law, Institutions and Recent Developments, in ROUTLEDGE HANDBOOK OF CONSTITUTIONAL LAW IN GREATER CHINA 113, 128 (Ngoc Son Bui, Stuart Hargreaves, Ryan Mitchell eds., 2023).

146 CONSTITUTION OF THE LAO PEOPLE’S DEMOCRATIC REPUBLIC OF 1991, amended through 2015,

art. 52 (Laos.) [hereinafter CONSTITUTION OF LAOS].

147 Id. art. 53. 148 Id. 149 Fukuda, supra note 4, at 44. 150 SOCIALIST CONSTITUTION OF THE DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA (1972,

amended through 2023), art. 87 (N. Kor.) [hereinafter CONSTITUTION OF NORTH KOREA].

151 Id. art. 116.

152 Guobin, supra note 144, at 128. 153 See PETER ROMAN, PEOPLE’S POWER: CUBA’S EXPERIENCE WITH REPRESENTATIVE GOVERNMENT 84 (2003) (the legislature in Cuba meets twice a year and its sessions normally last for only two days).

154 James G. March & Johan P. Olsen, The Logic of Appropriateness, in THE OXFORD HANDBOOK

OF POLITICAL SCIENCE 478, 478 (Robert Goodin ed., 2011)

155 See generally Qianfan Zhang, Establishing Judicial Review in China: Impediments and Prospects, in CONSTITUTIONAL COURTS IN ASIA: A COMPARATIVE PERSPECTIVE 311–34 (Albert H.Y. Chen & Andrew Harding eds., 2018); Bui Ngoc Son, Why Do Countries Decide Not to Adopt Constitutional Review?: The Case of Vietnam, in CONSTITUTIONAL COURTS IN ASIA: A COMPARATIVE PERSPECTIVE. at 335–64.

156 Bui Ngoc Son, id, at 348.

157 Keith

Hand, Constitutional Supervision in China after the 2018 Amendment of the Constitution: Refining the Narrative of Constitutional Supremacy in a Socialist Legal System, 23 ASIAN -PAC. L. POL’Y J. 137, 148 (2022).

J.

158 BUI NGOC SON, CONSTITUTIONAL CHANGE IN THE CONTEMPORARY SOCIALIST WORLD 21

(OXFORD UNIV. PRESS 2020).

159 See generally MARK TUSHNET, WEAK COURTS, STRONG RIGHTS (2008); STEPHEN GARDBAUM, THE NEW COMMONWEALTH MODEL OF CONSTITUTIONALISM: THEORY AND PRACTICE (2013). For critical discussions, see Aileen Kavanagh, What’s so weak about “weak-form review”? The case of the UK Human Rights Act 1998, 13 INT’L. J. CONST. L. 1008 (2015).

160 Mark Tushnet, Alternative Forms of Judicial Review, 101 MICH. L. REV. 2781 (2003). 161 Id. at 2784. 162 Id. at 2786. 163 Rosalind Dixon, The Forms, Functions, And Varieties Of Weak(ened) Judicial Review, 17

INT’L. J. CONST. L. 904, 907 (2019).

164 Ley 153, supra note 45 at art. 7.

In the course of settling a case or case, if detecting that a legal document related to the settlement of a case or case shows signs of contravening the Constitution, laws or resolutions of the National Assembly, ordinances or resolutions of the National Assembly Standing Committee, or legal documents of superior state agencies, the Court shall propose the competent agency to consider the implementation of such document. Competent agencies shall have to consider and notify in writing the results to the courts.165

supplementing,

annulling or

suspending

amending,

165 LAW ON ORGANIZATION OF PEOPLE’S COURTS No. 34/2024/QH15, amended through 2024, art.

29 (Viet.).